The Obama administration's announcement today that it will no longer defend the constitutionality of a key provision of the Defense of Marriage Act is a dramatic and completely game-changing legal decision. It is also the right one.
Five states and the District of Columbia currently license same-sex marriages, and more will follow. New York and Maryland recognize such marriages from their sister states, even though they do not yet perform them. Yet DOMA forbids the federal government from recognizing these marriages. This discrimination affects same-sex couples on matters ranging from tax-filing status to a same-sex spouse's eligibility for burial in a federally funded veteran's cemetery. The Government Accountability Office has documented "1,138 federal statutory provisions . . . in which marital status is a factor in determining or receiving benefits, rights, and privileges."
The lynchpin of today's announcement was the Justice Department's conclusion that government discrimination against gays and lesbians requires heightened scrutiny under the Equal Protection Clause (whose principles apply to the federal government through the Fifth Amendment's Due Process Clause). Courts grant a presumption of constitutionality to most laws and review them under only "rational basis" scrutiny. But the DOJ concluded that classifications based on sexual orientation are inherently suspect. Following established caselaw, the DOJ examined factors for heightened scrutiny and concluded that it should apply here, for four reasons: 1) there is "a significant history of purposeful discrimination against gay and lesbian people"; 2) "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable"; 3) gays and lesbians have "limited political power" to protect their interests through the majoritarian political process; and 4) "there is a growing acknowledgment that sexual orientation 'bears no relation to ability to perform or contribute to society.'" This analysis potentially has implications not just for marriage, but for all government discrimination against gays and lesbians.
Under equal protection principles, laws are not constitutional or unconstitutional in some absolute sense. When a court applies heightened scrutiny, the government is required to advance "important" reasons for keeping the discrimination in place. If the court accepts the reasons, the law is constitutional; if the reasons are insubstantial, grounded in animus or stereotypes, or only weakly connected to some important government objective, the law fails.
There is a strong, sound tradition of the executive branch defending acts of Congress, even when the administration in power disagrees with them. But it is completely unedifying to see the government's lawyers advance so-called "important" reasons for a law when those reasons are in fact outdated, illogical, hypothesized, or invented post hoc in response to litigation. This is what happened in the case last year where a federal judge struck down the military's Don't Ask, Don't Tell policy. The judge pointedly noted that it was unavailing and disingenuous for the government to argue that the law advanced "important" interests at the same time that the President and the Chairman of the Joint Chiefs of Staff were publicly asserting just the opposite.
After initially defending DOMA in various ongoing lawsuits, the DOJ has decided it will not engage in this sort of flawed legal argumentation. It is admitting that no important reasons exist for the federal government to refuse to recognize the perfectly valid marriages of same-sex couples from Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and our nation’s capital. For the purposes of its own laws, the federal government has always followed the determination of a state as to whether a person was legally married. It should be no different for same-sex couples.
To argue the contrary, the DOJ would have had to rely on DOMA's 15-year-old legislative history. The 1996 House committee report on DOMA is a remarkable period piece, full of homophobic rhetoric dressed up as public policy arguments that no serious national politician could get away with today. It decries an "orchestrated legal assault being waged against traditional heterosexual marriage," and asserts that Congress must respond by standing up for "traditional notions of morality." Or, as the DOJ puts it more delicately, "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." The DOJ commendably decided it "cannot defend [DOMA] by advancing hypothetical rationales, independent of the legislative record."
The DOJ's decision is principled, and its legal explanation is well-reasoned. Today's announcement is the beginning, not the end, of a fascinating new chapter in the legal and political debate over same-sex marriage.
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