I have always thought that the (so-called) Defense of Marriage Act (DOMA) represented a perversion of the fundamental constitutional concept of equal protection under the law, because it singles out one type of personal relationship entered into by individuals and provided for under state law (marriage) as protected when the individuals are a man and a woman and as unprotected when the individuals are two men or two women. It epitomizes gender discrimination and anti-gay bias.
The federal government's refusal to recognize this one particular type of state contractual relationship has substantial impacts on the individuals thus treated as "single for federal law purposes even though married under state law". One of those impacts is that those married couples are not treated as spouses under the Internal Revenue Code--e.g., for the rules governing the tax impact of divorce (section 71 under the Code on alimony, etc.) or for filing a joint return or for determining what amount of the gain from a sale of a home qualifies for exclusion under section 121. Teaching federal income tax--especially the 'baby tax' introductory course--thus requires mention of the way the tax references to marriage and spouse/husband/wife will be interpreted under DOMA.
I might add that DOMA is one of those provisions that shocks the conscience of anyone who thinks that this country should have advanced beyond the prejudices and biases so often reflected in legal systems. Under an adequate interpretation of our constitutional protections for individual liberties, it cannot be that one group (mostly religious fundamentalists) should have the right to impose their moral system on everyone else when it relates to such a basic gender-related aspect of one's identity as one's identification as "gay" or "straight". Not recognizing the gay marriage of two individuals X and Y has absolutely nothing to do with the validity and worth of the non-gay marriage of another two individuals A and B. If A and B go to a church that does not sanction gay marriage, then A and B will be united in that setting with others of their same view. Their views will be amply supported by their fellow parishioners, and that church could legitimately refuse to sanction any marriages other than those between a man and a woman and refuse to admit to membership anyone who is married under state law in a marriage that does not comport with the church's rules. But there is no justification for imposing that view on X and Y, who perhaps are equally religious and belong to a denomination that sees nothing wrong with gay marriage, and in fact celebrates the commitment that marriage implies between partners, whatever their sexual orientation. A and B's narrow scope view of marriage should not limit the possibilities for X and Y, either socially or legally.
Finally, we have an attorney general who has studied the issue of the constitutionality of DOMA and concluded that the DOMA classification based on sexual orientation "as applied to same-sex couples who are legall married under state law, violates the equal protection component of the Fifth Amendment." See CNN, The 1600 Report, Kapp, Attorney General Declares DOMA Unconstitutional, Feb. 23, 2011 (providing text of Holder letter to Congress); see also Savage, Obama orders end to defense of federal gay marriage law, New York Times, Feb. 23, 2011 (discussing AG Holder's letter to Congress). This decision references Section 3 of DOMA, which states as follows (footnoted in the letter):
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only 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."
Holder points out that previous defenses of DOMA have been in jurisdictions where circuit courts of appeal have ruled that classification based on sexual orientation are only subject to "rational basis" review--this means that Congress can get away with discriminatory laws so long as there is some rational basis for Congress thinking the law makes sense, a very low hurdle to get over. The Supreme Court, however, has not ruled definitively on the appropriate level of scrutiny on this issue. New lawsuits are in jurisdictions without such binding precedent. To defend those suits, the Justice Department would have to argue affirmatively that rational basis is the appropriate standard for review. In contrast, applying the criteria for determining whether heightened scrutiny is required, "the President and [AG Holder] have concluded that classifications based on sexual orientation warrant heightened scrutiny, and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional." CNN Report (text of Holder letter). In the analysis of the various factors that the Supreme Court has considered in adopting heightened scrutiny in other contexts, Holder notes that gays have been discriminated against, that sexual orientation is an immutable characteristic, that numerous examples exist of the limited political power enjoyed by gays, and that "there is a growing acknowledgment that sexual orientation 'bears no relation to ability to perform or contribute to society.'" Further, Holder concludes that the rationales used to justify lower scrutiny do not hold water--whether it be the ability to criminalize same-sex sodomy (overruled in Lawrence), the importance to marriage of procreation (already determined to be unreasonable as a basis for discrimination), or claims treating sexual orientation as a personal choice rather than an immutable characteristic (not reconcilable with recent scientific understanding). Because the legislative record for DOM "contains numerous expressions reflecting moral disapproval...precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against", Holder concludes that DOMA cannot withstand heightened scrutiny.
Accordingly, the Justice Department will not defend the statute in the two cases pending in New York and Connecticut: Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). There is a gigantic caveat, however--the Executive Branch will "continue to comply with DOMA, unless and until Congress repealse it or the judicial branch renders a definitive verdict against the law's constitutionality."