Supreme Court decision sends this from 'Promise Broken' to 'In the Works'
Last month, gay rights advocates celebrated a major victory as the Supreme Court struck down a key provision of the Defense of Marriage Act, a 1996 law that defined federal marriage as a union between one man and one woman.
With the 5-4 decision, same-sex couples who are legally married in their state or in the District of Columbia now qualify for the myriad of federal tax, Social Security, immigration and other benefits heterosexual married couples already receive.
As we've previously reported, President Obama's administration chose not to defend DOMA against the challenge, leaving that task to House Republicans.
Obama's decision not to defend the law followed a number of executive actions Obama took during his first term to expand federal benefits for same-sex couples.
However, another significant part of DOMA still stands — Section 2 of the law creates an exemption to the Constitution's "full faith and credit clause” allowing states to not recognize same-sex marriages performed in other states. United States v. Windsor didn't address this point.
Federal judges in Ohio and Pennsylvania have already used the Windsor decision to order the state and a private employer respectively to recognize same-sex marriages performed elsewhere. But until Congress repeals Section 2 or the Supreme Court rules it unconstitutional, states can continue to deny spousal benefits to same-sex couples married elsewhere.
So although progress was made when the Supreme Court struck down Section 3 of the law last month, more steps must be taken if Obama wishes to uphold his promise for a "complete repeal” of DOMA. We rate this promise In the Works.
U.S. Supreme Court, United States v. Windsor, June 26, 2013
Washington Post, "Supreme Court strikes down key part of Defense of Marriage Act.” June 26, 2013
Scotusblog, "Tuesday round-up,” July 23, 2013
Scotusblog, "Tuesday round-up,” July 30, 2013
Buzzfeed, "Federal Judge Says DOMA Ruling Changes Private Companies' Retirement Plans,” July 29, 2013.
Twin Cities Daily Planet, "Same-sex marriage and the next DOMA battle,” July 3, 2013
The National Journal, "DOMA Isn't Dead Yet,” June 27, 2013
Despite Obama's opposition, DOMA remains on the books
In 2008, Barack Obama pledged to repeal the Defense of Marriage Act and replace it with a law that gave equal rights and protections to same-sex couples.
The 1996 Defense of Marriage Act, signed under President Bill Clinton, defined marriage as between one man and one woman, excluding same-sex couples from more than 1,000 federal rights and protections.
As a candidate Obama wrote that he supported the full repeal of the law in an open letter to the lesbian, gay, bisexual and transexual, or LGBT, community.
Obama took steps to nix it, but the law remains on the books.
Last year, the Justice Department announced it considered the law unconstitutional and would stop defending it in court. But that's far short of the repeal Obama promised.
Sen. Dianne Feinstein, D-Cali., also introduced a bill that would repeal the Defense of Marriage Act, and Obama and his attorney general backed it in public statements.
Feinstein's bill -- called the Respect for Marriage Act -- represents the most serious legislative attempt to fulfill Obama's campaign promise. It cleared the Senate Judiciary Committee on a tight 10-8 party-line vote in November 2011.
That's as far as it went. The Senate hasn't held hearings or votes and doesn't have anything scheduled for the rest of the year.
On the judiciary side, federal judges and a U.S. appellate court have declared a section of the Defense of Marriage Act unconstitutional, though it would take the weight of a Supreme Court ruling to strike down the law.
Also under Obama, the Justice Department filed a legal brief arguing for the repeal of the Defense of Marriage Act and asked the Supreme Court to hear two cases challenging the law's constitutionality.
The only other progress we've seen on the issue relates to Obama's ABC News interview in May, in which he gave his personal endorsement of gay marriage. Although this gesture did not trigger any policy change, it reinforced Obama's position to do away with the law.
Even so, the outcome candidate Obama promised -- granting same-sex couples equal federal rights and protections as heterosexual couples -- hasn't happened. We rate this a Promise Broken.
Interview with Fred Sainz, vice president for communications and marketing at the Human Rights Campaign, Sept. 11, 2012
Email interview with Inga Sarda-Sorensen, communications director for the National Gay and Lesbian Task Force, Sept. 13, 2012
U.S. Justice Department, Statement of the attorney general on litigation involving the Defense of Marriage Act, Feb. 23, 2011
The New York Times, Appeals Court Turns Back Marriage Act as Unfair to Gays, May 31, 2012
GovTrack.us, S. 598: Respect for Marriage Act of 2011
Senator Feinstein Introduces DOMA Repeal Legislation, March 16, 2011
The Huffington Post, Walking the Walk on DOMA Repeal, July 20, 2011
U.S. Judiciary Committee, Statement of the Honorable Dianne Feinstein, Nov. 10, 2011
U.S. Judiciary Committee, Statement of Senator Patrick Leahy, Nov. 10, 2011
U.S. Judiciary Committee, Results of Executive Business Meeting (roll call vote on Respect for Marriage Act), Nov. 10, 2011
White House Blog, President Obama Supports the Respect for Marriage Act, July 19, 2011
U.S. Judiciary Committee, Senate Judiciary Committee Holds Hearing on Oversight of the Justice Department, Nov. 8, 2011
Justice Department will no longer defend DOMA against constitutional challenges
The Obama administration recently announced that the U.S. Department of Justice will no longer defend the Defense of Marriage Act against challenges questioning whether the law is constitutional.
President Barack Obama has long opposed the act, and during the campaign he would work for its repeal. Nevertheless, the U.S. Department of Justice defended the law when it was challenged.
But the administration undertook a legal review after new lawsuits challenged the law in a different circuit court, Attorney General Eric Holder said in a letter to Congress. The new lawsuits would have forced the administration to make more proactive arguments in favor of the law. After the review was finished, Obama and Holder concluded the law was unconstitutional, and they are now declining to defend it.
The act, signed into law by President Bill Clinton in 1996, says that states do not have to recognize same-sex marriages performed in other states, and that the federal government does not recognize same-sex marriage.
To be clear, ending the defense of DOMA doesn"t mean a full repeal is any closer. But it does signal that the White House is giving more attention to the issue. So we change the status of this promise from Stalled to In the Works.
U.S. Department of Justice, Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act, Feb. 23, 2011
The White House, Press Briefing by Press Secretary Jay Carney, Feb. 23, 2011
The White House, Press Briefing by Press Secretary Robert Gibbs, Jan. 18, 2011
Repeal of DOMA appears unlikely with Republican majority in the House
The 2010 election gave control of the U.S. House of Representatives to the Republican Party, lessening the chances of several Democratic proposals -- including the repeal of the Defense of Marriage Act.
During the campaign, President Barack Obama promised to support the repeal of the Defense of Marriage Act, called DOMA. The act, signed into law by President Bill Clinton in 1996, says that states do not have to recognize same-sex marriages performed in other states and that the federal government does not recognize same-sex marriage.
Obama has repeatedly called for repeal (see our previous updates below), and Rep. Jerrold Nadler, D-N.Y., introduced legislation in September 2009. It gained 120 co-sponsors, all Democrats, but never made it out of committee. Some Democrats felt their energy was better spent on gay rights legislation that had broader support, such as repealing the "Don't Ask, Don't Tell" policy that prevents gays and lesbians from serving in the military or protecting gays and lesbians from job discrimination.
There's little optimism among gay advocacy groups that such a bill will pass during during the next session of Congress, when Republicans will control the U.S. House of Representatives.
"The shift in the balance of power will be a very real challenge to advancement of lesbian, gay, bisexual and transgender (LGBT) rights legislation in Congress," said Inga Sarda-Sorensen, communications director with the National Gay and Lesbian Task Force. "Despite that, we will continue to identify and work with fair-minded members of Congress who are willing to support and defend equality for LGBT people."
Obama called for the repeal of the "Don't Ask, Don't Tell" to be addressed later this year, during a lame duck session of Congress when Democrats retain control of the House.
But repealing the Defense of Marriage Act has more opposition, particularly from Republicans. Back in 2006, several members of the House Republican leadership voted in favor of a resolution supporting an amendment to the the U.S. Constitution to declare that "Marriage in the United States shall consist only of the union of a man and a woman." Supporters included Rep. John Boehner, R-Ohio, who is expected to become Speaker of the House next year.
Gay rights advocates concede it's unlikely a repeal of the Defense of Marriage Act will make it through a Republican-controlled House of Representatives. So we rate this promise Stalled.
The Human Rights Campaign, 2010 Post Election Analysis
Thomas, To repeal the Defense of Marriage Act and ensure respect for State regulation of marriage , accessed Nov. 4, 2010
E-mail interview with Michael Cole, spokesperson for the Human Rights Campaign
E-mail interview with Inga Sarda-Sorensen, communications director, National Gay and Lesbian Task Force
Some progress on repealing gay marriage ban, but still a ways to go
Back in October 2009, we reported on the status of President Barack Obama's promise to support the repeal of the Defense of Marriage Act (DOMA). The act, signed into law by President Bill Clinton in 1996, says that states do not have to recognize same-sex marriages performed in other states and that the federal government does not recognize same-sex marriage. At the time, we rated the promise Stalled, since although legislation had been introduced in Congress to repeal the law, the White House had not voiced support for the bill.
Since then, several key developments have taken place:
• Obama called for the repeal of DOMA in his remarks at the Human Rights Campaign Dinner on Oct. 11, 2009. He again stressed that the law must be repealed in a Presidential Proclamation for Lesbian, Gay, Bisexual, and Transgender Pride Month issued on May 28, 2010.
• In April 2010, Obama issued a memorandum directing the Department of Health and Human Services to create a rule mandating that all hospitals that receive Medicare and Medicaid funding must grant visitation privileges to gay and lesbian partners of those who are in the hospital. "In the absence of gay people being able to legally marry in most jurisdictions, this is a step to rectify a gross inequity" said David Smith of the Human Rights Campaign, a gay rights group.
• In June 2010, the White House released a memorandum requiring executive agencies to extend benefits to same-sex domestic partners of federal employees. The benefits include family assistance services, hardship transfers, as well as relocation expenses. Obama noted that these benefits are in addition to the benefits that the Office of Personnel Management and the State Department had already extended to same-sex partners in 2009.
The president has repeatedly called for DOMA's repeal, and he has begun extending benefits to same-sex partners of federal employees. These developments move the promise from Stalled to In the Works.
We briefly considered the argument that candidate Obama only promised to "support" the repeal of DOMA -- something he has done -- and should thereby get a Promise Kept. After re-reading the letter to the LGBT community from which we got the promise, however, we decided against it. The wording of the letter conveys a tone of assurance that Obama will do everything in his power to repeal DOMA. Holding him to this standard, there's still a lot left to do.
First, he'll need some action from Congress, which has yet to pass the Respect for Marriage Act, a bill that would repeal DOMA. The bill has over 100 co-sponsors, but it's been lagging in committee since October 2009. If Obama is to fulfill his pledge of extending all benefits to same-sex partners of federal employees, Congress also needs to pass the Domestic Partnership Benefits and Obligations Act of 2009. Neither the Senate nor the House has yet to vote on the bill.
Another strike against Obama: The Department of Justice is embroiled in a legal battle with Massachusetts, which filed a suit against the federal government over DOMA's constitutionality in July 2009. A DOJ spokesman has said that the president supports a legislative repeal of DOMA, but it is a long-held practice for the administration to defend federal laws that have not been deemed unconstitutional.
To recap: The president is making some headway on his promise. He has extended federal benefits to the extent permitted by law, has repeatedly called for DOMA's repeal, and has directed the majority of U.S. hospitals to allow gay and lesbian individuals to visit their partners. On the other hand, Congress has yet to pass either of the bills that Obama needs in order to repeal DOMA and to extend the rest of the federal benefits. His Department of Justice is also fighting Massachusetts to uphold DOMA. We'll keep our eyes open for new developments, but for now, we're moving this promise from Stalled to In the Works.
The White House, Statement by the President on the Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, June 2, 2010
The White House, Memorandum for the Secretary of Health and Human Services, April 15, 2010
The White House, Statement by the President on the Presidential Memorandum on Federal Benefits and Non-Discrimination, and Support of the Lieberman-Baldwin Benefits Legislation, June 17, 2009
The White House, Remarks by the President at Human Rights Campaign Dinner, October 11, 2009
The White House, Presidential Proclamation -- Lesbian, Gay, Bisexual, and Transgender Pride Month, May 28, 2010
The Thomas Library of Congress, H.R. 3567 index page, accessed June 17, 2010
The Thomas Library of Congress, H.R. 2517 index page, accessed June 17, 2010
The Wall Street Journal Law Blog, Obama's DOMA Dilemma, by Ashby Jones, May 7, 2010
The Wall Street Journal, Massachusetts Sues U.S. Over Definition of Marriage, by Philip Shiskin, July 9, 2009
CNN, Obama orders hospital visitation rights for gays, lesbians, by CNN Wire Staff, April 16, 2010
Legislation introduced, but prospects still weak
Legislators have introduced a measure in the House of Representatives to repeal the federal law against same-sex marriage. They have 97 co-sponsors so far.
A reader e-mailed us about the measure, wanting to know whether we would move the meter from Stalled to In the Works. A couple of things stop us from changing our rating on this one, though.
The Defense of Marriage Act is a federal law passed in 1996 that says states do not have to recognize same-sex marriages performed in other states, and that the federal definition of marriage is a union of one man and one woman.
Rep. Jerrold Nadler, a Democrat from New York, introduced a repeal measure on Sept. 15. The proposal would repeal the Defense of Marriage Act and says that the federal government will recognize a marriage that is valid in the state it was performed, even if the couple lives in a state where the marriage is not valid.
The White House has not voiced support for the bill. We will be watching to see if President Barack Obama mentions it when he speaks at the annual dinner for the Human Rights Campaign, a gay rights organization, on Oct. 10, 2009.
Additionally, Rep. Barney Frank of Massachusetts, a prominent gay rights supporter, doesn't support the bill because he said it has no chance of passing. His office sent us this statement from Frank when we asked about it:
"I support the repeal of DOMA. But I think it is a mistake to raise the issue of people who are married in one state having legal recognition of any sort in another state. Given that there is no chance of enacting that, I think it will give our opponents a chance to distort things and therefore undercut our efforts on (other) bills we can pass."
We are keeping track of these new developments, but we do not find them significant enough to move the Obameter. The promise remains Stalled.
Thomas, To repeal the Defense of Marriage Act and ensure respect for State regulation of marriage , accessed Oct. 2, 2009
Human Rights Campaign, Respect for Marriage Act Fact Sheet , accessed Oct. 6, 2009
Associated Press, Backers of gay marriage want to repeal federal law, Sept. 14, 2009
Obama is silent on Defense of Marriage Act repeal
Supporters of same-sex marriage have expressed disappointment that the Obama administration is defending the Defense of Marriage Act in federal court.
The act, signed into law by President Bill Clinton in 1996, says that states do not have to recognize same-sex marriages performed in other states and that the federal government does not recognize same-sex marriage.
President Barack Obama said during the campaign he would work for the repeal of the act. But the law's constitutionality is being challenged in federal court. On June 11, 2009, the Obama administration defended the law's validity in a 54-page brief that said the law is consistent with equal protection and due process principles and does not violate the right to privacy.
Officials in the Obama administration and the Justice Department said that they are required to defend the law in court as long as it is still on the books. An Obama spokesman told the Los Angeles Times that Obama "remains fully committed" to his proposals on gay rights.
But supporters of gay rights still criticized the administration for the legal filing.
The Human Rights Campaign said it had "grave concerns" about the arguments put forward in the brief.
"The administration apparently determined that it had a duty to defend DOMA in the courts. The president has just as strong a duty to put his principles into action, and end discrimination against (lesbian, gay, bisexual and transgender) people and our families," said HRC president Joe Solmonese in a statement. "We call on the president to send legislation repealing DOMA to Congress."
"It is time for you to use your leadership to translate these principles into meaningful action," he added.
The group Parents, Families and Friends of Lesbians and Gays also called for Obama to act "immediately" to overturn the law.
We searched the legislative database Thomas and were not able to find any introduced bills that would repeal the Defense of Marriage Act. Bloggers and Web sites on both the left and the right noted last month that language supporting the repeal had disappeared from the White House Web site. We also couldn't find any instances of Obama talking about repealing the act since he took office.
The administration contends it must defend laws that are on the books, but there are few signs of progress that Obama is trying to fulfill his promise. We rate this promise Stalled.
PACER, Arthur Smelt and Christopher Hammer vs. United States of America, Justice Department brief in support of motion to dismiss, June 11, 2009 ( available via Scribd.com )
Los Angeles Times, L.A. gay pride parade darkened by U.S. stance on marriage , June 15, 2009
Human Rights Campaign, Statement on the Obama Administration"s Defense of the Defense of Marriage Act In the Smelt v. U.S. Case , June 12, 2009
Parents, Families and Friends of Lesbians and Gays, PFLAG Denounces the Department of Justice"s Arguments Supporting DOMA , June 12, 2009
Thomas, The Defense of Marriage Act
Think Progress, White House Eliminated Pledge To Repeal Defense Of Marriage Act From Website , May 4, 2009
Americans for Truth, White House Pulls Obama"s Anti-DOMA Pledge from Presidential Website , May 9, 2009