Lots and lots of news on the marriage front today in Maryland, Hawaii, and the federal government. Let’s start with the biggest news first.
President Obama’s Justice Department will no longer defend the Defense of Marriage Act (DOMA) in court, citing Section 3, which defines marriage as man/woman only for all federal purposes, as unconstitutional. From Attorney General Eric Holder’s letter to Congress:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the Presidentâ€™s determination.
From the New York Times report on the news:
â€œItâ€™s a monumentally important decision,â€ said Tobias B. Wolff, a law professor at the University of Pennsylvania who advised the Obama campaign on gay rights issues.
â€œThe Justice Department and the president have taken the position on behalf of the United States government that discrimination against gay and lesbian people in all cases is presumptively unconstitutional,â€ he said. â€œItâ€™s the first time the United States government has ever embraced that position, and if the courts agree, it will help to eradicate all of the various forms of discrimination that gay and lesbian people suffer around the country.â€
This is welcome news, especially since President Obama’s actual view on marriage was clear three days before he was elected, even if he was unwilling to admit as much outright for over two years (not that I’ve been keeping track).
And so my criteria, for example, would beâ€” if a Justice tells me that they only believe in the strict letter of the Constitution– that means that they possibly don’t meanâ€” believe inâ€” a right to privacy that may not be perfectly enumerated in the Constitution but, you know, that I think is there.
I mean, theâ€” the right to marry who you please isn’t in the Constitution. But I think all of us assume that if a stateâ€” decided to pass a law saying, “Brian, you can’t marry the woman you love,” that you’d think that was unconstitutional. Well, where does that come from? I think it comes from a right to privacyâ€” that may not be listed in the Constitution but is implied by the structure of the Constitution.
(See JoeMyGod for reaction from the hate groups. I shan’t be bothered with them tonight.)
At the state level, the Maryland Senate today debated and voted in favor of passing the state’s proposed marriage equality law to the floor for a vote Thursday. Given Wednesday’s vote, it’s expected to pass.
Of course, the bill didn’t pass without attempts to amend it to death. The one successful amendment changed the bill’s name from the “Religious Freedom and Civil Marriage Protection Act” to the “Civil Marriage Protection Act.” (I guess they didn’t want people noticing that religious freedom is a major part of the marriage equality argument.)
But if that’s what it takes, that’s fine. The Maryland Senate did defeat an amendment that would allow religious (read:Catholic) adoption agencies to discriminate against lesbian and gay households, so the majority’s priorities were in place.
And if that wasn’t enough, Hawaii Governor Neil Abercrombie signed that state’s long-in-coming civil union bill into law Wednesday afternoon, with the law going into effect January 1, 2012. This is the second time in under a year that Hawaii’s legislature has passed the civil union bill, with then-governor Linda Lingle (R) vetoing it last July.
Though the new law in Hawaii isn’t quite marriage, it’s a huge get for equality advocates. Hawaii is where the whole marriage battle began some 15 years ago with the state’s Supreme Court deciding unanimously (in Baehr v. Miike) that refusing marriage to gay couples was unconstitutional under the state constitution’s equal protection clause. This prompted the US Congress, then Republican-controlled and election-bound, to pass the national DOMA to contain the potential damage to their ability to discriminate.
And now, after years of discrimination, Hawaii, Maryland, and the Obama administration are finally moving in the right direction. As they say, you can only delay justice. You can’t deny it forever.