DOMA criticism may not make its way to Ind.

As a constitutional amendment banning same-sex marriage works its way through the Indiana legislature, a provision of the federal Defense of Marriage Act was declared unconstitutional by the U.S. Attorney General on Feb. 23.

Following Obama’s statement to the Justice Department to stop defending DOMA, Attorney General Eric Holder wrote in a letter to Speaker of the House John Boehner saying Section 3 of DOMA was unconstitutional.

Section 3 addresses federal tax, immigration and other laws for lawfully married same-sex couples.

But this statement may not impact Indiana any time soon.

This declaration does not affect the other clause in DOMA that refers to whether states are required to recognize same-sex marriages.

Thus, Indiana would be able to ignore these statements because same-sex marriages are not considered legal from inside Indiana or another state.

While it is not typical for an attorney general to declare a law unconstitutional, IU professor of law Aviva Orenstein said in very narrow circumstances the attorney general can refuse to defend laws that are, in his or her view, unconstitutional. 

“The Courts will still hear the case, and those who support DOMA can still argue in favor of it. The attorney general has just withdrawn its willingness to make arguments it believes are untenable,” Orenstein said.

Whether couples that married in a state where same-sex marriage is legal and then moved to Indiana could expect to receive the federal tax rights guaranteed to other married couples is still unknown.

“That area of the law is still totally unclear,” IU professor of law Deborah Widiss said.
In the letter to Boehner, Attorney General Holder cited the recent repeal of the “Don’t Ask, Don’t Tell” policy as one of the reasons to further scrutinize this section of DOMA. 

It is presumed that Boehner and other House Republicans will issue their own defense of DOMA to fight back against Holder’s words.

“The statement by the federal government and the state of Indiana represent two sides of an ongoing discussion,” Widiss said.