August 28, 2011

AFTER THE Obama administration announced this year that it would no longer defend against challenges to the Defense of Marriage Act (DOMA), the House, led by Speaker John Boehner (R-Ohio), hired its own lawyers and stepped in to fill that void. Those lawyers recently filed the House response to a group of gay men and lesbians who are legally married in their home states but have been denied federal benefits because DOMA forbids recognition of their marriages.

Here, in plain language, is what the House had to say in urging a federal court to throw out the lawsuit: Gay men and lesbians have not been discriminated against long enough to warrant special protection; being gay is not an “immutable characteristic,” unlike race or gender; and, in any case, gays and lesbians are not politically powerless and have made great strides, among them securing the repeal of the military’s “don’t ask, don’t tell” policy.

Most gay men and lesbians experience their identity as being no less inherent than that of race or gender. But they continue to be vulnerable to intolerable discrimination. There still is no law preventing dismissal of gay employees because of sexual orientation. State laws not only prevent recognition of same-sex marriages but also keep gays from adopting children.

DOMA has made matters worse. Before 1996, when the law was passed, the federal government deferred to state definitions of marriage when determining federal benefits. DOMA changed that, undercutting the prerogatives of states that want to allow gay marriage.

House lawyers say that lawmakers acted rationally in limiting federal benefits to unions between one man and one woman, in order to preserve the traditional family structure and to ensure that children borne of those unions are protected by law. Recognition of these marriages, they say, does not translate into discrimination against nontraditional unions. “DOMA neither prevents the formation of same-sex marriages where they are allowed nor breaks them apart once entered, nor does it limit a person’s autonomy in any way,” the House asserts. “DOMA simply defines ‘marriage’ for the purpose of assigning federal benefits and burdens.”

But given how many benefits of marriage are controlled by federal law, that argument doesn’t hold water. Joanne Pedersen worked for the federal government for some 30 years and lives in Connecticut, where same-sex marriage is legal, but she was unable to insure her spouse on her federal health plan. Gerald V. Passaro II, another Connecticut resident, can’t collect on his late husband’s pension from Bayer Corp. because federal law governs the administration of pension plans.

The House argues that changes to DOMA and other laws that govern marriage would best be achieved through the democratic process. We agree that it would be ideal to see progress through the ballot box and statehouses in a manner that ensures that citizens will embrace such changes. But the fact that the political process may yield progress in the future does not obviate the need for courts to address wrongs today. If defending DOMA requires making assertions that are clearly false, the law is not defensible.