The White House announced yesterday that they were effectively putting the nail in the coffin of the Defense of Marriage Act.
“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Attorney General Eric Holder said in a statement.
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“The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” Holder said. “Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.”
So what’s this mean? No, it doesn’t mean we’re to full marriage equality yet, but we’re getting there. In fact, we’re now very, very close. So what’s the legal mumbo jumbo for LGBT people now? Adam B at Dailykos explains:
Here’s what you need to understand: under equal protection law, statutes which are alleged to be discriminatory get decided under one of four standards:
- Strict Scrutiny: statutes discriminating on a suspect classification like race must be justified by a compelling governmental interest, be narrowly tailored to meet that interest and the discrimination in question must be the least restrictive means of fulfilling that compelling interest. Most statutes fail to meet this test, but, for instance, narrowly-tailored affirmative action programs can survive.
- Intermediate scrutiny: the statute must further an important/”exceedingly persuasive” governmental interest in a way that is substantially related to that interest. Usually used for evaluating gender-based discrimination, as in the VMI case.
- Rational Basis-plus: a statute seemingly motivated by animus against a politically unpopular group basically fails.
- Rational basis: If there’s nothing deemed particularly special about the classification, the law must merely be a reasonable means to an end that may be legitimately pursued by the government. It’s the deferential default standard of review.
Today, essentially, the Attorney General says that statutes discriminating against gays move from the bottom category to somewhere in the middle two groups, and that DOMA’s restrictive definition of marriage did not have sufficient non-animus-based justification to survive such scrutiny.
More specifically, while I’d encourage Arkansas gays and lesbians not to rush to the courthouse just yet, understand that removing DOMA kicks this back to the states and will raise a full faith and credit clause issue somewhere along the way. For example, let’s say someone from Massachusetts moves to Arkansas and finds their marriage from their home state isn’t recognized here. They then go to court. If the Full Faith and Credit Clause means anything anymore (and it does) then the courts will have to order the states to recognize the records of the state of Massachusetts. It’s fundamental constitutional law.
All in all, this is a welcome and unexpected development. For an administration that seemed unsure of its footing on LGBT issues just a few months ago, it looks like Obama has found his stride with the community.
What is troubling about all this is the fact that the President cannot declare a law unconstitutional. That is the jurisdiction of the Supreme Court. No matter what your views are on gay marriage or DOMA, this is not the best way to see this issue handled.
If our previous president had ordered the justice department not to enforce, lets just say, the Americans with Disabilities Act, and employers could effectively ignore their requirements to provide workplace accomodations, etc. – how would you react? You would (rightfully) call him a tyrant and accuse him of overstepping his office.
Again, regardless of your feelings on this issue, the President should not instruct the justice department to ignore laws that the executive branch believes are unconstitutional. That is the court’s purview.
Actually DOMA was already found to be unconstitutional in court:
http://thinkprogress.org/2010/07/08/mass-doma-case/
Obama isn’t deciding to do this on a whim. He’s simply giving up the appeal. There’s nothing in the Constitution that says the executive branch has to fight to defend a law all the way to the Supreme Court.
A Florida middle District court has upheld DOMA http://demopedia.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=1166304&mesg_id=1167239
and in Washington, and in other courts, the law has been upheld. So the issue is not decided yet.
Until the Supreme Court rules on the matter, it is still the law.
Isn’t the executive branch supposed to enforce the law? Or do we want our executive branch picking and choosing which laws to enforce? I know that, in reality, it happens a lot more than it should, but that doesn’t make it right.
Again, I’m not picking on the issue. I just don’t think that the administration is doing the right thing here.
What is so surprising about our government not upholding or enforcing the laws that are on the books. They have proven time and time again that they do so if and when it suits them. Look at the borders and ILLEGALS. oh excuse me
“undocumented aliens” Next year that will be changed to “unfortunate travelers” so as not to offend the “Politically Correct” crowd. Such B.S. They can’t afford to lose a possible voting base.That is the reason and the only reason they don’t uphold those laws.