Editorial: Only a Matter of Time Before Marriage Equality is the Law of the Land

By Editorial Board , San Jose Mercury News
02.27.11

Progress. That's what President Barack Obama's decision last week not to defend the Defense of Marriage Act in court represents in the fight for equality for gays and lesbians. It's not going to change things overnight -- that's not Obama's style. But following his fight to repeal the military's discriminatory "don't ask, don't tell policy," this was the logical next step in a long battle. It should be lauded.

Obama and Attorney General Eric Holder made their decision after concluding that Section 3 of the Defense of Marriage Act is unconstitutional. It's hard for anyone but the most ardent opponent of equality to argue with their logic.

Section 3 requires the federal government to treat same-sex marriages differently than opposite-sex marriages, even in states where both are legal. It allows the government, for instance, to deny Social Security benefits to gay widows and widowers.

Obama's decision comes in response to lawsuits challenging the law. One, filed in New York by 81-year-old widow Edith Windsor, seeks the return of $360,000 in estate taxes she had to pay following the death of her wife, whom she married in Toronto.

Obama, predictably, is being criticized by some on the right who say it's his duty to defend whatever laws are on the books. 

"We can't have presidents deciding what laws are constitutional and what laws are not," Massachusetts Sen. Scott Brown said in a news release. "That is a function of the

We'll have to remember that quote a few years from now, just in case President Sarah Palin declines to defend the individual mandate in the health care law.

Remarkably, though, little criticism of this decision has been about its substance, a sign that the issue is losing its potency as a wedge for Republicans -- or perhaps that it might be turning into a wedge for Democrats. House Speaker John Boehner lamented its timing. Few potential presidential candidates waded in. GOP politicians no longer see denying gay rights as a surefire election winner.

That will make it fascinating to see whether Boehner decides to step in and mount his own defense of the law, which he is allowed to do. As anyone who followed California's Proposition 8 trial can attest, defending "traditional marriage" is an impossible task. Proposition 8 supporters presented just two "expert witnesses" to try to make the case that gay marriage somehow damages the state's interests. Both witnesses were demolished on cross-examination and by the judge in his ruling overturning the law. There is simply no logical, legal or constitutional basis on which to deny gay couples the right to marry or, by extension, the government benefits that come from marriage.

The step Obama took this week -- refusing to defend the indefensible -- was essential in the long march toward equality. There are many more steps yet to come, including the president's own embrace of marriage equality.

But there are signs of progress everywhere. It's only a matter of time.judicial branch, not the executive."