A recent episode of The Good Wife brings to light the battle for gender equality in marriage and the conflicting and contradictory positions taken by the Obama administration.
As it is now, the government has repealed "don’t ask, don’t tell," decided not to defend Section 3 of the Defense of Marriage Act (DOMA) in court, and states have legalized same-sex marriage laws, but the federal government has not the courage of its conviction to modify its administrative procedures to allow same-sex couples the same statutory protections enjoyed by its heterosexual employees.
Fictional television shows have a way of taking on controversial social and political issues and presenting them in a somewhat more digestible format.
The Good Wife episode, “A Defense of Marriage,” finds a CEO and CFO of a software company being charged with tax fraud. The CEO and CFO are co-defendants. When the Assistant U.S. Attorney General Bucky Stabler, played by Brian Dennehy, attempts to submit wiretapped conversations between the defendants and their spouses as evidence, the defense team objects citing spousal privilege. It turns out that the CFO is in a legal same-sex marriage which was licensed by the state of Vermont. Vermont is one of nine U.S. states, plus Washington, D.C., and two Native American tribes that have legalized same-sex marriages. Spousal privilege does not extend to same-sex couples in a federal court. In fact, there is no recognition of same-sex marriage at all in federal courts. And that becomes a cause célèbre for a liberal “Supreme Court super lawyer” in the episode, who uses the case to challenge the constitutionality of DOMA.
DOMA is a federal law that defines marriage as the legal union of one man and one woman for federal and inter-state recognition purposes in the United States. The law passed both houses of Congress by large majorities and was signed into law by President Bill Clinton on September 21, 1996. This discrimination is extended to immigration laws as well. Binational same-sex couples are kept from legally living in the United States by DOMA's section 3, which prevents one spouse from sponsoring the other for a green card.
Section 3 of DOMA has been found unconstitutional in eight federal courts, including the First and Second Circuit Court of Appeals, on issues including bankruptcy, public employee benefits, estate taxes, and immigration. As of 2012, five of those cases are awaiting a response for review in the Supreme Court.
Under the law, no U.S. state or political subdivision is required to recognize a same-sex marriage from another state. Section 3 of DOMA codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, and the filing of joint tax returns.
The Department of Justice under Attorney General Eric Holder and with the instruction of President Obama has made the decision that the government will no longer defend Section 3 of the law in court. Obama’s administration says that the law is unconstitutional and they intend to enforce the law, as distinct from defending it in court.
In The Good Wife, once the "super lawyer," Jeremy Breslow, joins the case it quickly becomes evident that he is not interested in winning the case for the defense, but more interested in using it as a vehicle to try DOMA in front of the Supreme Court.
In this scene, Stabler cross-examines an attorney general and highlights the conflict and contradiction between Obama’s refusal to defend the law in court and its application in the federal government:
Stabler: It is the opinion of the current administration that the Defense of Marriage Act discriminates against same-sex marriage and should not be enforced.
Witness (Former Attorney General): Yes sir as I said.
Stabler: And this would apply to every level of government
Witness (Former Attorney General): Yes.
Stabler: Social Security benefits.
Witness: Well, I will admit the Social Security Administration has been slow to modernize.
Stabler: Meaning that same sex spouses do not receive social security benefits.
Witness: That is correct.
Stabler: What about federal estate tax deductions? Are they available to same sex spouses?
Witness: No, regrettably.
Stabler: Spousal medical benefits for government employees?
Witness: No, not yet.
Stabler: Medical and dental insurance for military spouses? Discounted housing? Surviving spousal benefits? Anything?
Witness: Again, not yet.
This exchange highlights the discrimination inherent in DOMA.
Stabler closed the scene with this statement: “Wouldn't the inaction of the current administration on these issues indicate where their heart really is on the Defense of Marriage Act?”
It is true that fictional television shows may over dramatize or unnecessarily simplify the complexity of the issue and they undoubtedly tend to lean towards the more progressive, read liberal, slant. However, they do bring attention to some of the topical issues of the day. Soap operas for example are known for many things, some good, some bad, but they invariably and consistently were unafraid to present the social and political issues of the day. Fictional television may treat issues like AIDS, inter-racial marriage, or same-sex marriage superficially, or trivialize it as a background story element, but there are times when that issue is front and center and becomes the central theme of the show.