The Fate of the Marital Union: Is DOMA Approaching Its Last Day?

Written by Lisa Alexander, Public Relations Chair, Albany Government Law Review

Introduction

DOMA’s days might be numbered.  U.S. Attorney General Eric Holder recently announced that the Department of Justice (DOJ) will no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court.[1] While the DOJ will continue to appear in litigation and “represent the interests of the United States,”[2] it will no longer argue that Section 3 of DOMA is constitutional as it is applied to same-sex couples.[3] This decision has sparked heated debate and a flurry of proposed legislation.  Though riddled with controversy, the facts support that the executive made an appropriate, and arguably necessary, decision.

A Brief History of DOMA

The Defense of Marriage Act was enacted in 1996.  The crux of the current controversy is Section 3, which defines marriage as a “legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”[4] DOMA was enacted, at least in part, as a response to Hawaii’s Supreme Court decision Baehr v. Lewin.[5] In Baehr, the court found that while the applicant same-sex couples did not have a fundamental right to marry pursuant to the right to privacy, they could argue their equal protection theory on remand.[6] The possibility that homosexual men and women might attain a marriage license in Hawaii and that their home states would have to recognize the unions’ legality under the Full Faith and Credit Clause was too much for Congress to bear. DOMA easily passed through both the House and Senate and was signed into law by President Bill Clinton.[7]

The legislative record illustrates Congress’ judgments about the definition of marriage and the morality behind it.  Some members of Congress firmly believed that marriage could only be between a man and a woman.  For instance, Representative Barr remarked that “[M]arriage throughout the entire history of not only our civilization but Western civilization has meant the legal union between one man and one woman.”[8] Others emphasized that the homosexual marriage question was a moral one, and that such marriages were morally wrong.  Representative Hoke remarked:

One of the things that was said during the debate that I think is probably the most preposterous . . .  is that Congress has no business legislating morality . . . The fact is that we legislate morality on a daily basis. It is through the law that we as a nation express the morals and the moral sensibilities of the United States, and what is morality except to decide what is right and what is wrong? That is what morality is all about.[9]

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The Ghost, The Building, The Battle

Jason St. James, Albany Government Law Review Member

On September 11, 2001 the collective consciousness of the United States of America was forever shattered.  Gone was the visage of invincibility, replaced by feelings of disbelief, heartache, shock, and awe, the likes of which had not been felt since the attack on Pearl Harbor on December 7, 1941.  While almost seven decades separate these catastrophic events, one common thread still exists: the spirit of America was underestimated.  In the wake of the unimaginable, President George W. Bush stated, “[o]ur enemies have made the mistake that America’s enemies always make.  They saw liberty and thought they saw weakness.  And now, they see defeat.”[1] Another conflict now looms on the horizon.  This battle is not being waged by the use of arms, but through a clashing of ideals.  The ambitious Park51 Project acts a lithmus test of U.S. resolve to learn and move past the 9/11 tragedy.

Park51, originally designated as the “Cordoba House,” is a proposed fifteen-story Muslim community center located approximately two city blocks from the World Trade Center site[2] in Lower Manhattan. Imam Feisal Abdul Rauf and Soho Properties Chairman and CEO, Sharif El-Gamal, are heading the project.  The Park51 Project has been controversially referred to as the “Ground Zero Mosque” because it will contain a Muslim prayer space capable of holding between 1000–2000 people.[3] However, the community center design also includes a 500-seat auditorium, theater, performing arts center, fitness center, swimming pool, basketball court, child care area, library, culinary school, art studio, food court, and a September 11 memorial.[4] The proposed community center will be replacing an 1850’s Italian-style structure that was being used as both a Syms and Burlington Coat Factory, until the building was damaged during the September 11 attack on the World Trade Center.[5] One possible obstacle to the construction was the discussed conferment of landmark status upon the current 1850’s building, but on August 3, 2010, New York City’s Landmarks Preservation Commission voted 9–0 against granting landmark status and historic protection to the building, thus clearing the way for the building’s demolition.[6]

Continue reading “The Ghost, The Building, The Battle”