The Obama administration last week declared a portion of the federal same-sex marriage ban unconstitutional, saying it will no longer defend the measure in court, a sudden about-face that sent waves throughout both LGBT and antigay circles.
While the Defense of Marriage Act, which prevents federal marriage benefits from being bestowed upon same-sex couples who are legally married, will still remain in place, Obama’s announcement dealt a major symbolic blow to the law — one that could also have vast logistical implications for marriage equality.
Attorney General Eric Holder, the nation’s top lawyer, wrote last Wednesday that the administration determined that cases centering on discrimination based on sexual orientation deserve “heightened scrutiny,” a standard of review that compels the government to show that a law significantly advances a nondiscriminatory government interest — a much stricter form of review than “rational basis,” in which a defense can utilize looser rationalizations and hypothetical situations to justify a law.
When applying heightened scrutiny to DOMA, Holder said the administration found Section 3 of the law — which limits the definition of marriage to being between one man and one woman — to violate gay individuals’ equal-protection constitutional rights.
“While both the wisdom and legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this administration will no longer assert its constitutionality in court,” Holder wrote.
Directional shift
While Obama has previously stated his opposition to the 1996 law, last week marked the first time he publicly committed to the idea that it is unconstitutional.
Mary Bonauto, civil-rights project director of Gay and Lesbian Advocates and Defenders, said the decision on the standard of review was “extraordinarily significant.”
“Laws that distinguish between people based on sexual orientation are more likely to reflect prejudice against gay people than good public policy,” she said. “Discrimination based on sexual orientation needs to be justified by the government with exceptionally good reasons rather than being assumed to be permissible. The attorney general concedes that DOMA fails this test.”
Molly McKay, executive director of Marriage Equality USA, noted the administration’s shift in position reflects a turning point in marriage equality.
“To have the president of the United States and the attorney general of the United States so strongly concur that DOMA violates the equal-protection clause of the U.S. Constitution is a very, very big deal,” McKay said. “It’s just tremendous that they basically said that you can’t write exceptions into the equal-protection clause. That’s just unconscionable, and they said that they can no longer defend that because there’s just no argument for it. This is really a watershed moment for the LGBT community when we have our elected representatives standing up and so strongly affirming that this is time to end legal discrimination.”
In the past two years, the Department of Justice has defended the law in two federal lawsuits filed by marriage-equality advocates, from which it will now remove itself. If both cases proceed, members of Congress will be allowed to step in and defend DOMA.
If the U.S. Supreme Court or Congress eventually overturns DOMA, marriage equality would not be the law of the land across the country, but rather federal benefits could be available for same-sex couples who are legally married.
Several senators, including Sens. Dianne Feinstein (Calif.) and Kirsten Gillibrand (N.Y.), said they were committed to repealing DOMA after the administration’s statement, but a repeal bill has not yet been introduced.
ACLU and GLAD roles
Last week’s announcement was precipitated by two separate suits filed in November by the American Civil Liberties Union and GLAD, in which motions by the defense were due next month. Both suits were filed in jurisdictions where a precedent for standard of review in sexual-orientation cases had not yet been set, allowing for the DOJ opinion.
GLAD is also spearheading “Gill v. Office of Personnel Management,” in which a District Court judge last summer found that Section 3 violated the constitutional equal-protection clause. The same court also ruled last summer in “Massachusetts v. Office of Personnel Management” that DOMA violated states’ rights. “Golinski v. Office of Personnel Management” is also challenging DOMA in the U.S. District Court for the Northern District of California.
Holder said in his statement he would instruct “department attorneys to advise courts in other pending DOMA litigation of the president’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the department will cease defense of Section 3.”
Accordingly, the DOJ will not move forward with its appeals in Gill and Massachusetts, although whether the defense will be taken up by members of Congress, as Holder authorized, is uncertain.
The development comes at a time when the California Supreme Court is reviewing whether the defendants in a case seeking to nullify the state’s ban on same-sex marriage have proper legal standing; like Obama and Holder, that state’s former Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend the law, and a group of anti-LGBT activists stepped in.
McKay said, in light of the ongoing discussion in California, it will be interesting to see what implications could arise if a member of Congress does attempt to defend DOMA.
“[Holder’s] statement said the administration wouldn’t oppose someone picking up the defense, but whether that person is really allowed to do so is a question that each court is going to have to consider,” she said.
“Whoever does step forward is going to be known throughout history as the person who stood in the doorway, blocking full equality for LGBT people. I anticipate their grandchildren will be embarrassed that that’s the infamous role their grandfather or grandmother played in the advancement of civil rights.”
Jen Colletta can be reached at [email protected].