The American Bar Association and DOMA
The American Bar Association (ABA), a professional association of attorneys, passed earlier this month a resolution calling for the repeal of Section 3 of the Defense of Marriage Act (DOMA), the section preventing same-sex couples who are married under state law from receiving federal benefits. The measure takes no position supporting or opposing marriage rights for same-sex couples, but seeks to "ensure that state decisions on whether to recognize such marriages are given deference under federal laws and programs".
Though the ABA is made of legal professionals, it has no ability to make, interpret, or enforce laws. In other words, its position is not binding on any state or federal courts, and does not necessarily reflect the modern flow of law. Professional organizations take stands on a number of social and political issues, but they do very little to actually change the minds of our opponents. For instance, though the Diagnostic and Statistical Manual of Mental Disorders (DSM) stopped classifying homosexuality as a mental disorder in 1973, many anti-gay organizations still cling to the belief that gay and lesbian individuals suffer from mental illness. Similarly, though the American Psychological Association has supported adoption by same-sex parents since 2004, these same organizations remain convinced that gay parents are somehow harmful to children. Commentary from experts in anthropology, psychology, law, and other disciplines does little to sway the opinions of those in anti-gay groups who would rather believe outdated propaganda than review the latest research.
However, the ABA, in deciding to take no position on marriage itself and instead focus on the issue of federalism (whether DOMA is an unacceptable usurpation of states' rights), has shaped the argument in such a way that even the anti-gay groups could not possibly disagree. Their reasoning is as follows:
Throughout our history, the federal government has looked to state and tribal law to determine who is married for purposes of these provisions. But in 1996, Congress abandoned this tradition of deference to the states by enacting the Defense of Marriage Act, Section 3 of which denies same-sex couples married in accordance with state law the legal protections, rights, and responsibilities accorded to other married persons under federal law.
The enactment of this provision was an unprecedented encroachment on state prerogatives in the field of marital and family law, overriding state determinations and profoundly altering the traditional distribution of authority between the federal government and the states in the field of family law. It has deprived thousands of lawfully married same-sex spouses of the range of federal protections they would otherwise receive, making it difficult for them to provide for one another and subjecting them to financial hardship and uncertainty.
Stated more simply, since the founding of the country, it has been up to each of the state governments to determine the rules of marriage, which the federal government would then respect. DOMA Section 3 was the first and only departure from this principle, and allowed the federal government to ignore the states' rules and enforce its own. This, according to the ABA, is impermissible.
It remains to be seen what the implications of ABA's stance on DOMA will be, and what, if any, effect it will have on GLAD's lawsuit challenging DOMA. However, the ABA at the very least has shown that gay rights matter not just to same-sex couples, but also to anyone who supports the state's right to sovereignty and freedom from unwarranted federal intrusion.
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