April 2, 2012
By Scottie Thomaston
Back in 2009, the author of the Defense of Marriage Act, former House representative Bob Barr, repudiated the Defense of Marriage Act and called for its repeal, writing:
I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.
In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.
Along with his reversal, many former supporters of the Defense of Marriage Act (mostly Democrats) have come out in favor of its repeal, and signed on as cosponsors of the Respect for Marriage Act, the repeal bill:
In addition to Sen. Robert Menendez (NJ), the list of current US Senators who voted for DOMA in 1996 but are now co-sponsoring the Respect for Marriage Act includes Sen. Jeff Bingaman (NM), Sen. Benjamin Cardin (MD), Sen. Richard Durbin (IL), Sen. Tom Harkin (IA), Sen. Herb Kohl (WI), Sen. Frank Lautenberg (NJ), Sen. Patrick Leahy (VT), Sen. Carl Levin (MI), Sen. Barbara Mikulski (MD), Sen. Patty Murray (WA) and Sen. Charles Schumer (NY).
The Department of Justice also came out in opposition, writing a brief which admitted the government has had significant role in the history of discrimination against gays and lesbians and telling federal courts that laws affecting gays and lesbians should be considered ‘suspect.’
And there’s the Republican defense of the law which has been quiet and largely behind the scenes. The House didn’t vote on the decision to defend the law, leaving it to a panel to decide whether the Bipartisan Legal Advisory group would step in. And Boehner and the lawyer defending DOMA, Paul Clement, still refuse to state their opinion of the law despite renewed criticism from both sides. This criticism is unlikely to subside anytime soon, since House Republicans just decided to defend DOMA against a US Army veteran who was diagnosed with multiple sclerosis and is not legally allowed access to spousal benefits because of the law. Republicans are increasingly realizing that they won’t win an argument if their position is to strongly oppose marriage equality.
And now, a former Republican staffer who helped write the Defense of Marriage Act is now lobbying for its repeal:
Lehman, now 52, was chief counsel for the House Judiciary Committee’s Subcommittee on the Constitution. She says she and her colleagues working on DOMA didn’t think it would do much harm. They had two goals in mind: to prevent the federal government from recognizing any marriage between gay couples, and to ensure that states didn’t have to recognize gay couples married in other states.
As it turns out, DOMA has hurt gay and lesbian couples in a multitude of ways.
Lehman is a lesbian with a long-term partner and she says she came out to fellow Republican staffers and they didn’t have a problem with it:
Lehman, who was and still is staunchly conservative, decided after several months to start telling her peers about her relationship with Conway. Many worked for powerful Republican leaders in Congress. The first friend she told was in Hastert’s office; the next was in House Majority Whip Roy Blunt’s office. Both were supportive of her relationship. She went on to tell more friends, and none had a negative reaction. In fact, many were more concerned about something else besides her sexual orientation.
“They were like, ‘Well, tell us about Julie. Is she a Republican?’ I’m like, ‘Yes.’ And they were like, ‘Oh, okay,’” she says. “Honestly, that was it.”
Her opposition came at a time when she realized that tradition shouldn’t dictate laws like this because it leads to discrimination that people later regret:
Lehman’s turning point on DOMA came when she read a 2009 legal brief by Ted Olson, the Republican attorney who surprised many by helping to bring a lawsuit against Proposition 8, California’s constitutional amendment banning same-sex marriage. In his brief, Olson, who was formerly President George W. Bush’s solicitor general, mapped out various groups of people who are allowed to get married — people in prison, convicted rapists — while gay and lesbian couples cannot.
A lot of things in the U.S. that had been done one way “were crap and we got rid of them,” Lehman says, thinking back to Olson’s brief. “Traditionally, women didn’t work outside the home. Traditionally, in the South, black people sat in the back of the bus. It’s all part of things traditionally that have changed for the better.”
Along with the repeal bill and its growing list of supporters, DOMA has now reached the appeals court level. The First Circuit Court of Appeals will hear Gill v. OPM, a challenge to the law, later this week.