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DOMA unlikely to disappear before 2012 elections
By Michelle Bauman
Senator Dianne Feinstein (D-Calif.) speaks at the Nov. 10 Senate Judiciary Committee meeting
Senator Dianne Feinstein (D-Calif.) speaks at the Nov. 10 Senate Judiciary Committee meeting

.- Despite multiple legislative and judicial efforts to fight the Defense of Marriage Act, senators and legal experts agree that the law will most likely not be repealed in coming months.

“People understand what marriage is in their gut, but they struggle expressing it,” said William B. May, founder and chairman of Catholics for the Common Good.

He pointed to the fact that in all 31 states where the issue has been put before the people, they have voted against redefining marriage.

“They know marriage is a reality that can only be between a man and a woman,” he said. “And that’s why every time it’s put to a vote of the people, marriage is protected.”

But despite the will of the people, certain courts and legislators continue to fight the Defense of Marriage Act, May said in a Nov. 9 interview.

“You have a very, very powerful and well-funded and well-organized special interest pushing for redefining marriage,” he said.

The 1996 U.S. Defense of Marriage Act defines marriage as the union of one man and one woman for all federal policies. It also prevents any individual state from being forced to recognize another state’s redefinition of marriage.

Six states and the District of Columbia currently recognize same-sex “marriage,” while 41 states have adopted statutory or constitutional Defense of Marriage Acts of their own.

But despite the widespread support among the states, a bill to repeal the federal Defense of Marriage Act passed the Senate Judiciary Committee by a vote of 10 to 8 on Nov. 10.

The so-called Respect for Marriage Act was sponsored by Sen. Dianne Feinstein (D-Calif.). A corresponding House bill, sponsored by Rep. Jerrold Nadler (D-N.Y.), was introduced in March and is currently in the Subcommittee on the Constitution. The House is expected to reject the bill if it comes to a vote.

Supporters of the controversial Respect for Marriage Act argue that it would return the issue of marriage to the individual states.

Opponents point to Article IV of the U.S. Constitution, which requires all states to give “full faith and credit” to the “public acts, records, and judicial proceedings” of other states. They argue that without the protection of the Defense of Marriage Act, one state’s recognition of same-sex marriage could force every other state to follow suit. 

Several senators believe that the Respect for Marriage Act will not ultimately become law.

Senator Tom Coburn (R.-Okla.) argued during the committee debate that the bill stands no chance of ultimately passing and distracts from important issues including federal debt and unemployment.

“No matter what the Senate does with this, it isn’t going through the House,” he said.

Senator John Cornyn (R-Texas) agreed. He argued that Senate majority leader Harry Reid (D-Nevada) has no intention of bringing the bill to a vote in the Senate before the next election.

“I think it's a transparent appeal to a special interest group that our Democratic friends believe is a key to their electoral victory in 2012,” Cornyn said.

In addition to the proposed legislative repeal, the Defense of Marriage Act has also faced multiple challenges in federal courts across the country.

In February 2011, President Barack Obama argued that the law was unconstitutional and instructed the Justice Department to stop defending it in federal court. 

In response, members of the House of Representatives convened the Bipartisan Legal Advisory Group to defend the law.

However, House leaders have said that the group will not appeal all cases, particularly those that are costly and unlikely to lead to the Supreme Court.

Congressman Dan Burton (R-Ind.) also sought to respond to the Department of Justice’s refusal to defend the law. This past March, he introduced The Marriage Protection Act of 2011, which states that no federal courts would have jurisdiction to hear cases on same-sex “marriage.”

Rep. Burton said that the bill aimed to fight activist judges who “have been trying to unilaterally define marriage for too long.”

The bill currently has 26 co-sponsors and has been referred to the Subcommittee on the Constitution.

Joshua Gillespie, communications director for Rep. Burton, said Nov. 10 that he was not aware of any hearings, debates or markups scheduled for the bill. He explained that this means the bill does not have a high likelihood of advancing.

With legislation unlikely to pass in the current Congress, the issue could be decided by the courts.

Mathew Staver, founder of the non-profit litigation group Liberty Counsel, commented on the multiple challenges that the Defense of Marriage Act has seen in federal court.

“It’s hard to really predict which case could make it to the Supreme Court,” he said Nov. 10.

Staver explained that so far, no federal court of appeals has struck down the law. But if one were to do so, the Supreme Court may review the case.

“At some point in time, I’m sure that the Defense of Marriage Act will be before the U.S. Supreme Court,” he said. “I just don’t know when or which case.”

Staver does not think that the law will come before the Supreme Court or be repealed by Congress before the 2012 election.

Ultimately, he said, the fate of the Defense of Marriage Act could hinge on who wins the next election.

A new president might renew efforts to defend the law, Staver speculated. However, if President Obama is re-elected, he will almost certainly continue fighting the act.

“I think this particular president has done everything he can to undermine natural marriage between one man and one woman,” he said.


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