Far from defending the act, the Obama administration is one of the main challengers.
In fact, the legal battle is shaping up into a major constitutional confrontation between the administration and the U.S. House, one that would have been considerably altered had President Obama not been re-elected last week.
The entire law, enacted in 1996, is not under attack. Section 2 says no state is required "to give effect to any public act, record, or judicial proceeding of another state that treats a relationship between two persons of the same sex as a marriage under its laws."
In other words, a same-sex marriage in Maryland, which just approved such unions, would not necessarily have to be recognized in any other state.
None of the challenges targets Section 2.
Section 3, which is targeted in all the cases, says, "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."
DOMA has taken a beating in the lower courts and it's up to the U.S. Supreme Court whether to save it or not.
"Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them," the administration told the Supreme Court in a petition brief, "it excludes such marriages from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status. ... Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws."
The Obama administration wants the high court to review the case of Edith Schlain Windsor, an 83-year-old New Yorker who in 2007 married in Canada her same-sex partner of 40 years, Thea Spyer. When Spyer died in 2009 of multiple sclerosis, she left her estate to Windsor.
As executor of Spyer's estate, Windsor paid approximately $363,000 in federal estate taxes, but filed a refund claim under a federal statute that says "property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes." The Internal Revenue Service denied the claim on the ground that Windsor is not a "spouse" within the meaning of DOMA Section 3 and thus not a "surviving spouse" within the meaning of the statute.
Windsor filed suit in Manhattan challenging Section 3's constitutionality, saying it violated the equal protection guarantee of the Fifth Amendment.
After she filed, U.S. Attorney General Eric Holder told Congress he and President Obama had decided Section 3 was unconstitutional as applied to same-sex couples legally married under a state law. That official position surely would have changed had former Massachusetts Gov. Mitt Romney, the Republican presidential nominee, defeated Obama last Tuesday.
Last month following a similar ruling in Boston, a federal appellate panel in New York agreed with Windsor in a 2-1 vote.
Though its position prevailed in the lower courts, the administration asked the high court to rule on DOMA, but it doesn't necessarily want the justices to accept the administration case for review. However, the petition tries to cover all the bases.
"The question of whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection as applied to same-sex couples legally married under state law is presented in the government's petition for a writ of certiorari (request for review) in (the separate case of) United States Department of Health & Human Services vs. Massachusetts," the petition said, adding, "and in the government's petition for a writ of certiorari before judgment in Office of Personnel Management vs. Golinski, No. 12-16 (filed July 3, 2012). For the reasons explained in those pending petitions, that question warrants this court's review now.
"The court should hold this petition (involving Windsor) pending its consideration and disposition of the petitions in Massachusetts and Golinski. Should the Court grant review in either of those cases, it need not grant review in this case. If the court concludes that neither Massachusetts nor Golinski provides an appropriate vehicle for resolving the question presented, it should grant the government's petition for a writ of certiorari before judgment in Office of Personnel Management vs. Pedersen [filed concurrently with this petition]. If the court also concludes that Pedersen is not an appropriate vehicle, it should grant this petition to ensure a timely and definitive ruling on Section 3's constitutionality."
U.S. House Republican leaders took up the banner for defending DOMA, and a group called the Bipartisan Legal Advisory Group of the United States House of Representatives, or BLAG, filed its own petition to the U.S. Supreme Court in the Massachusetts case.
"DOMA does not bar or invalidate any marriages but leaves states free to decide whether they will recognize same-sex marriage," the petition said. "[DOMA does not 'prevent same-sex marriages where permitted under state law.']. Section 3 of DOMA simply asserts the federal government's right as a separate sovereign to provide its own definition, which 'governs only federal programs and funding.'"
DOMA wasn't born in a vacuum, the petition said.
"Before enacting DOMA [in 1996], Congress received and considered advice on its constitutionality and determined that DOMA is constitutional" after consulting a number of political and academic sources, it told the high court. "Congress specifically sought constitutional advice from the executive branch, and the Justice Department under the Clinton administration advised Congress three times that DOMA was constitutional."
Moreover, the executive branch has a "constitutional duty to 'take care that the laws be faithfully executed,'" the petition said, citing Article II, Section 3 of the Constitution, the petition said in a footnote, and the Justice Department during the Bush administration successfully defended the act several times.
"This court 'does and should accord a strong presumption of constitutionality to acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is (constitutional),'" the petition said, citing a 1953 high court precedent.
In the Massachusetts case, the Justice Department did an "about face," the petition said.
At first the department filed a brief in the Boston appeals court supporting DOMA.
"Only a few weeks later, in February 2011, the department performed its 'about face' on DOMA ... and informed the (appeals court) that it would 'cease its defense' in the Gill (vs. OPM) and Massachusetts appeals," the BLAG petition said.
In a new brief, "the department not only failed to defend the constitutionality of an act of Congress but affirmatively attacked it, arguing that 'the equal protection claim should be assessed under a "heightened scrutiny" standard and that DOMA failed that standard.' ... Indeed, the brief affirmatively assailed DOMA's constitutionality and went so far as to attack the motives of individual legislators and charge them with animus."
The BLAG petition contended: "This [Supreme] Court and this court alone has the power to settle this question and redirect controversy over this important national question to the democratic process. The constitutionality of Section 3 of DOMA is an issue of great national importance and separation-of-powers considerations strongly counsel in favor of prompt review."
If one of the DOMA challenges is granted review, as seems likely, the justices could hear the case later this term.