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Analysis and Commentary on the Obama Administration’s New Position to Cease Support of DOMA

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President Barack Obama ordered his administration on March 24 to stop defending the constitutionality of a federal law that bans recognition of gay marriage—a policy reversal that could have major implications for the rights and benefits of gay couples.

by Joseph G. Milizio and Peter Carrozzo

What does the Administration’s new position mean to the LGBT community day-to-day? Will they feel any change?
The LGBT community rallied around President Obama during his campaign for president. His decision confirms his campaign commitment to support the community, and will instill faith in the fact that all Americans are entitled to the same rights.

The influence that the president has over the American people is undisputed. It is significant that yesterday’s statement has the strongest words ever spoken by a president in support of the movement. President Obama used what President Theodore Roosevelt described as “the bully pulpit” of the presidency to mobilize the forces of the entire executive branch of government to overturn the Defense of Marriage Act [DOMA]. The strength of that statement, from the highest office in our system of government, is a watershed moment in LGBT history.

His decision will bring LGBT rights into the mainstream. People will feel more comfortable knowing that the federal government  is not going to defend a law that is not constitutional. The pending court cases will still need to be determined, and appeals will most likely postpone any change in the law, so no legal effect is forthcoming from today’s decision. The process could result in severe ups and downs as cases progress through the legal system. But the foundation for change has become stronger, and the American public will now know that its president supports the entire community.

Is this a real change or just lip service?
This is real. Many LGBT rights organizations have pressured the president to make this determination. It is a significant step in the process. The fact that the defense department will not defend DOMA means that one more obstacle has been removed.

This is a politically brave position for the president to take. He just made a hard-left turn at a time when he could have easily said nothing and continued to move to the middle after the interim election.

President Obama may attempt to distance himself from the decision, or make a statement against same-sex marriage but in favor of civil unions, as an attempt to move toward the middle. But this was a very strong statement: the president said DOMA is unconstitutional and should be overturned. His position signifies that members of the LGBT community are minorities suffering from a history of discrimination and deserving of heightened scrutiny.

What is the anticipated Congressional reaction?
There are many in Congress who do not share the president’s views and can put up obstacles. However, the Justice Department, being in the executive branch of government, must follow the dictates of the president. It reminds one of when Nixon fired the special prosecutors investigating Watergate. He had that power since they were in the executive branch. Congress can act on behalf of the federal government, but the entire executive branch must follow this directive. Perhaps we should examine whether any executive orders can be passed in further support of LGBT rights.

To learn more about DOMA, and to view Milizio and Peter Carrozzo discussing its implications, view Left Out in America: Legislating Love, Life and the LGBT, a short, award-winning documentary at enddoma.org.

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