The constitutionality of the Defense of Marriage Act will not be defended by the Obama administration.

The law, lawyers, and the court.
Feb. 23 2011 6:50 PM

Indefensible

Why the Obama administration changed its mind about the Defense of Marriage Act.

(Continued from Page 1)

What's really changed since last fall, according to Holder's reasoning, is that since November 2010, two new lawsuits were filed challenging Section 3 of DOMA in jurisdictions without any precedent indicating whether classifications based on sexual orientation would be subject to the lower "rational basis review" or something higher. Reflecting on the appropriate standard of review, the administration concluded that "the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against."

Translation: Members of Congress can continue to say what they please to justify passing a law. But we can no longer stand up and make these sorts of arguments in front of a judge.

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Holder is careful to minimize the impact of what happens next. It's not as though the whole law will collapse under the weight of "heightened scrutiny" tomorrow. Going forward, Congress will have to defend DOMA, and Justice Department attorneys will now argue that heightened scrutiny should apply. Presumably, someone other than the Justice Department will step in to file briefs defending DOMA, and eventually these cases will reach the Supreme Court. But the DoJ will still play a role. "If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis," Holder writes, "the Department will state that … a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard."

The real sea change here is that Obama can finally claim, as his attorney general did today, that the winds of change have shifted since 1996. "The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional," writes Holder today. "Congress has repealed the military's Don't Ask, Don't Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional." Obama can now openly state that his views on gay marriage are "evolving" as Holder admits that "recent evolutions" in gay rights law have influenced this change.

The president seems to have finally acknowledged a truth played out at the Proposition 8 trial in California last summer: Virtually all of the arguments advanced to deny gay couples the right to marry are based on moral animus and junk science, rooted in discredited cases like Bowers v. Hardwick and in unfounded bias that is increasingly hard to defend in open court. As professor Suzanne Goldberg of Columbia Law School put it today: "This is a spectacular and long-awaited acknowledgment by the federal government that there is no good reason for treating gay and nongay people differently, especially when it comes to recognizing the relationships of same-sex couples." The main consequence of today's decision is that the people who actually believe in Bowers v. Hardwick, moral animus, and junk science will get to defend it in court, if they can. The president no longer has to.

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