Gay-marriage advocates got good news last month, when the Obama administration admitted that it was incapable of defending the Defense of Marriage Act (DOMA), the federal law that defines marriage as between one man and one woman. As a result, the US Department of Justice (DOJ) will no longer argue for the law's constitutionality in court.
"It's a momentous shift for the administration to acknowledge what we've always known," says attorney Janson Wu of the Boston-based Gay and Lesbian Advocates and Defenders (GLAD). "DOMA is unconstitutional and it hurts gay and lesbian families and children."
This development — which initially only covered the federal courts in the Second Circuit (Vermont, Connecticut, and New York), but has since been extended at least to the First Circuit as well (Maine, New Hampshire, Massachusetts, and Rhode Island) — eliminates the inherent awkwardness of DOJ attorneys having to defend a law that the administration thinks is bad policy. (See "Fighting Back," by Deirdre Fulton, June 4, 2010.)
"The President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional," wrote US Attorney General Eric Holder in a letter to Speaker of the US House of Representatives John Boehner.
"Heightened scrutiny" refers to a standard of review in court, applied to a law that affects a group that has suffered a history of discrimination, and where the characteristics of the group (in this case, sexual orientation) have little to no bearing on policy objectives. Under this strict scrutiny, the DOJ would have to prove that the government has a legitimate interest in prohibiting gay couples from marrying or receiving marriage benefits — and Obama and Holder do not believe they can.
If DOMA were held to a lower level of review — the so-called "rational basis" test, which simply calls for a rational reason for prohibiting gay marriage — as it is the DOJ would still be able to defend DOMA.
Congress is also allowed to step in and defend DOMA, although this route is rarely taken. It's unclear whether Congress will choose to defend DOMA in GLAD's Second-Circuit case Pedersen v. the Office of Personnel Management case. GLAD's executive director Lee Swislow told the Talking Points Memo news site last week that she does expect Congress to get involved. If Congress opts not to do so, the judge would essentially hear a one-sided case, and would likely order the federal government to recognize legal same-sex marriages.
In the First-Circuit case of Gill v. the Office of Personnel Management, "there isn't total clarity right now," Wu admits. GLAD, which expected to file briefs in the appeal of this case this week, is "waiting for further guidance." Massachusetts Attorney General Martha Coakley has said that she expects the government to drop its appeal of Judge Joseph Tauro's July decision, which stated that DOMA violated the Constitution's equal protection clause. Should that happen, Tauro would order the US government to recognize the Bay State's gay marriages.