Ask Lambda Legal: What Next for DOMA?

Q: My husband and I have been together 28 years and we married three years ago in Massachusetts. I'll be blunt: We're getting older, and are worried about what will happen to the surviving partner when the other of us dies. We know that, at present, if one of us dies, the other would not be eligible to collect death and survivor benefits available to different-sex spouses, and that my husband would be unable to obtain the benefits available to surviving spouses of heterosexual veterans, but does President Obama's recent announcement about the Defense of Marriage Act change any of that?

A: As you're clearly painfully aware, the so-called Defense of Marriage Act (DOMA) is depriving thousands of legally married same-sex couples the rights and benefits that the federal government provides to different-sex couples. Indeed, the federal Government Accountability Office has estimated that there are 1,138 federal laws that treat individuals differently based on whether they are married or not. But unfortunately, undoing this discriminatory piece of legislation will take some time.

It is a wonderful development that President Obama and U.S. Attorney General Eric Holder have concluded that Section 3 of DOMA (which demands that the federal government only honor the marriages of different-sex couples) violates the U.S. Constitution. While they informed Congress in February that they therefore would no longer defend that provision of DOMA against legal challenges, they said that they would support Congress stepping in to defend that law if it wishes. In response, the Republican leadership of the House of Representatives has instructed the House counsel to seek to do just that.

Shortly thereafter, bills were simultaneously introduced in the House and Senate to repeal DOMA. President Obama supports DOMA's repeal, and it's important that the conversation has begun in Congress about putting an end to that law. But, given the current composition of the House of Representatives, passage of DOMA repeal is going to be an uphill battle.

That's why organizations like Lambda Legal are turning their attention once again to the judicial system. Ten cases challenging the constitutionality of DOMA—including Lambda Legal's Golinski v. Office of Personnel Management—are currently making their way through the federal courts. While the arguments that DOMA is unconstitutional are strong, the final outcome of those cases remains in the hands of the courts.

When Congress passed DOMA in 1996, it was an attempt to codify into law both popular anxiety over the mere prospect of same-sex couples marrying, and the personal and religious views of some about what constitutes a family. Now tens of thousands of same-sex couples are legally married under state law. They are suffering the real-life consequences of Congress' decision to write discrimination into federal law. Lambda Legal has heard from countless married same-sex couples who, because of DOMA, must pay extra federal income taxes on health insurance, are denied essential family benefits through Social Security, endure wrenching separation if one spouse is not an American citizen, and face a host of other injustices large and small.

What is clear is that more people than ever—including the President and the Department of Justice—now recognize that DOMA is wrong and should be done away with. What can you do to speed its end? Two things: (1) Continue to support Lambda Legal's efforts in the courts, and (2) call your representatives and urge them to join some of the most powerful members of Congress, including Senators Dianne Feinstein of California and Patrick Leahy of Vermont, in supporting the Respect for Marriage Act. For more information, contact our Help Desk.