Intersection of Law and Politics: Keeping DOMAs In Check
By Hayley Gorenberg, Deputy Legal Director, from Of Counsel vol 3, no 1
Put to popular vote the nine mini-DOMAs (defense of marriage acts) on state ballots last November drew overwhelming support. Now, with all but one of the new measures in place, and several others from years past, proponents of discrimination are not stopping at marriage.
Ostensibly drafted to prevent same-sex couples from marrying, these state DOMAs range from simply defining marriage as a union between a man and a woman all the way to denying unmarried couples any rights or benefits arguably resembling those granted in marriage. Lambda Legal has racked up recent wins in diverse arenas — from domestic violence to health benefits to child custody — working to restrict the reach of state DOMAs.
Perhaps the most surprising cases using state DOMAs were brought by unmarried men charged with battering their female partners. In a rash of cases, these men fought criminal prosecutions by asserting that laws against domestic violence bestowed a marital-type benefit on a battered nonspouse, violating Ohio’s DOMA. Ohio’s law prohibits giving anything that would “approximate” marriage to anyone other than a married different-sex couple. We filed amicus briefs, and in several cases, the appellate courts agreed with our position. Now the issue is before the Ohio Supreme Court.
Lambda Legal also defeated a state legislator’s challenge to a university’s domestic partnership health benefits program. This challenge was also premised on the (faulty but vigorously pursued) theory that constitutionally privileging marriage for heterosexuals eviscerates legal benefits for same-sex couples. And we achieved a significant Virginia victory in Miller-Jenkins, which ensured there would be no “gay exception” to the federal Parental Kidnapping Prevention Act. Once again the argument — this time in the custody arena — had been premised on the concept that a gay parent’s rights could be swept away by a state DOMA hostile to former civil union partners. In that case, one parent attacked the rights of her former partner, keeping her from seeing their young daughter for years.
With legislators continuing to write hasty and untested discriminatory DOMAs into the law books and state constitutions, it is hard to imagine what other boundaries extremists may push to expand the reach of these DOMAs. While Lambda Legal works to develop a long-term strategy toward abolishing DOMAs, we continue our immediate fight to minimize their damage.
