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.
“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.