Landmark Senate hearing on repeal of gay marriage ban Wednesday

Washington, DC, United States (AHN) – The first Senate hearing on a measure to repeal the federal law banning same-sex marriage, the Defense of Marriage Act (DOMA), was set to begin Wednesday, a day after the White House announced its support for a bill giving same-sex couples the same rights and legal protections as straight couples.

Conservatives and gay advocates have been rallying supporters to attend the hearing before the Judiciary Committee on a bill introduced by Sen. Dianne Feinstein (D-CA).

The measure, the Respect for Marriage Act, would overturn DOMA, allowing gay couples to have access to benefits such as filing joint federal income taxes and deductions, medical leaves due to sickness in the family, and federal employee and retiree pensions.

Gay advocates such as Human Rights Campaign president Joe Solmonese and Evan Wolfson, founder of Freedom to Marry and widely considered the father of the gay marriage movement, were set to testify.

Also on the witness list were Tom Minnery of Focus on the Family and Austin Nimocks, senior legal counsel of the Alliance Defense Fund and one of the lawyers for proponents of Proposition 8, California’s ban on same-sex marriage.

Congress passed DOMA under the Clinton administration in 1996 to prevent same-sex marriages from states that allow them to be recognized in states where gay marriage is illegal. Section 3 of the law requires the federal government to recognize marriage as between a man and a woman, resulting in numerous lawsuits from gay spouses prohibited from receiving Social Security and other benefits.

Until early this year, the Obama administration had been defending DOMA in court despite calling the law “discriminatory.”

On Tuesday, the White House for the first time endorsed Feinstein’s bill, saying DOMA “continues to have a real impact on the lives of real people — our families, friends and neighbors.”

“President Obama is proud to support the Respect for Marriage Act,” spokesman Jay Carney said in a statement.

Early this year, the Justice Department concluded that the law is unconstitutional and that it could no longer defend it in court. Attorney General Eric Holder announced that two new cases filed last November had no “established or binding standard for how laws concerning sexual orientation should be treated.”

In previous lawsuits, government lawyers had argued that Congress was constitutionally authorized to enact DOMA in order to preserve the status quo until debate on same-sex marriage is resolved and to provided nationwide uniformity in terms of federal benefits.

Holder explained in a letter to Congress, “Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.”

He said rational basis, which is the lowest level of scrutiny a court can apply on a constitutional case except those involving groups suspected of being the target of discrimination, cannot be used in courts with no precedents. Doing so would create a situation that would force the government to defend the law “under heightened scrutiny,” which has never been done because it is unconstitutional. Defending a law under such circumstances for the first time could violate the Equal Protection Clause.

“Under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits [with] precedent,” Holder said. “The legislative record underlying DOMA’s passage contains discussion… that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

Some advocates have long argued that DOMA violates the Equal Protection Clause for singling out legally married gay couples and denying them federal protections under law.

But conservatives point out that several states have passed legislation, such as those recognizing civil unions, providing gay couples access to the same benefits as those of married heterosexuals.

Focus on the Family, a Christian ministry that promotes marriages “that reflect God’s design,” believes same-sex marriage is a concept among “those who view marriage as a transient human invention – ready for updating and revision,” that precedes efforts from other advocacy groups such as polygamists for “recognition of their relationships as ‘marriage.’ “

In addition, Republicans, who control the House but not the Senate, have said DOMA’s constitutionality should be decided by the courts and not “unilaterally” by the Obama administration. They have hired a law firm, Bancroft PLLC, to defend DOMA, an effort that coincides with the repeal process of another law banning gays in the military, “Don’t Ask, Don’t Tell.”

Feinstein’s bill has a version in the House introduced by Rep. Jerry Nadler (D-NY). The chamber voted 248-175 last week to pass a bill prohibiting federal funds from being used in violation of DOMA. The measure was in response to a Navy memo about a plan to allow chaplains to conduct same-sex marriages on military bases once “Don’t Ask, Don’t Tell,” is repealed later this year.

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