On March 7, 2013, former President Bill Clinton wrote an editorial in The Washington Post arguing that the Supreme Court should overturn the Defense of Marriage Act (DOMA). In 1996, both houses of Congress passed the DOMA by large bipartisan majorities. President Clinton signed the Act mainly to neutralize a political movement in favor of a constitutional amendment banning gay marriage. Specifically, the DOMA defines marriage as a union between one man and one woman for all federal purposes and relieves states from recognizing any such union though recognized by another state. Even though the DOMA is still on the books, President Obama has told the Justice Department not to enforce it. Currently, same-sex marriage is legal in nine states and the District of Columbia. However, same-sex couples across the country are denied federal benefits and programs because their relationships are not recognized under the DOMA.

The DOMA will come before the Supreme Court on March 27. The purpose of Clinton’s editorial is to explain why the Court should overturn the law. In the editorial, Clinton notes that he has come to believe that the DOMA is contrary to the principles of freedom, equality, and justice, and that the law is “incompatible with our Constitution.” Interestingly, this is the second time Clinton has disavowed a landmark anti-gay legislative measure that he signed into law.  In 2010, Clinton stated publicly that he regretted signing the controversial “Don’t Ask Don’t Tell” (DADT) policy, a federal law mandating the discharge of any U.S. armed service member who was openly lesbian, gay, or bisexual. DADT was repealed in 2011.

Despite Clinton’s editorial and other opposition to the DOMA, it remains unclear how the Court will rule. Some commentators have prematurely proclaimed that the DOMA is doomed. However, in a recent interview, Justice Anthony Kennedy, the perennial swing vote on the Court, suggested that the Court should not issue controlling opinions on hot-button political issues. He explained, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.” This statement certainly increases the possibility that the Court may not overturn the DOMA.

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