Fallout from Obama’s DOMA Decision :: Court Cases and 2012
U.S. Attorney General Eric Holder announced yesterday that the Obama Administration had determined it would not defend an anti-gay 1996 federal law, the "Defense of Marriage" Act (DOMA), because President Obama views the act as unconstitutional. The decision is likely to have far-reaching consequences, from how courts respond to cases involving GLBT equality to how the next presidential election plays out in 2012.
Under the provisions of DOMA, which was signed into law by then-president Bill Clinton, the federal government may not legally recognize gay and lesbian families. That means that even those same-sex couples that are married in the five states where family parity is legal can only access state-level benefits and protections related to matrimony. The law also allows states to ignore marriages granted in other jurisdictions. Section 3 of the law defines marriage as a legal union of one man and one woman.
But the Obama Administration effectively declared that DOMA violates the Fifth Amendment’s equal protection clause, and lays the groundwork for a legal standard that requires compelling evidence to justify anti-gay laws and policies.
The reasoning behind the Obama Administration’s decision was a legal yardstick called a standard of review. The lawsuits in question were filed with the Second Court Attorney General Eric H. Holder. Jr., made a statement on Feb. 23 on the decision not to defend the law.
"In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court," Holder noted. "Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.
"Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated," Holder’s statement continued. "In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply."
By declaring that a standard of review based on the authenticity of the GLBT community as a distinct group, and by acknowledging that GLBTs have historically suffered discriminatory treatment, President Obama took a significant step that has the potential to re-cast how GLBT individuals, families, and issues are viewed by the courts.
White House press secretary Jay Carney said that the decision would have an immediate effect on cases beyond those in the Second Circuit. "The decision is that we will - the administration will not defend the Defense of Marriage Act in the Second Circuit," Carney affirmed, adding, "Furthermore, the president directed the Attorney General not to defend, because of the decision that it’s not constitutional, defend the Defense of Marriage Act in any other circuit, in any other case."
The decision constitutes a public statement on the nature of homosexuality that is likely to ruffle feathers among the anti-gay religious community, which often justifies prejudice directed at GLBTs by claiming that homosexuality is no more than a matter of chosen sexual conduct. Arguments promoting faith-based discrimination against GLBTs often rely on a premise that rejects the life experience of gays themselves: homosexuals say that they are innately, powerfully, and irreversibly predisposed to romantic and sexual attraction to others of the same gender.
By declaring in no uncertain terms that DOMA is unconstitutional and that court cases involving the rights of GLBTs should be subjected to the "heightened scrutiny" that comes with a stricter standard of review, the Obama administration forcefully upheld what gays--and science--say about the matter: that GLBTs are a distinct, genuine segment of the population who cannot simply "choose" not to be who they are by their natures. As such, laws that harm them and their families are discriminatory and require significant proof of their necessity in order to be legally justifiable. In short, GLBTs are a genuine minority group, and as such are eligible for protections from the whims of the majority that might affect their rights and legal status.
A Feb. 24 San Francisco Chronicle article noted that the Obama Administration’s choice not to defend DOMA would likely have judiciary consequences that reached far beyond the Second Circuit.
"This will impact every case" involving parity for gay and lesbian families, according to UCLA’s Brad Sears, who heads up the Williams Institute, which is dedicated to legal issues surrounding sexual orientation. Such cases could include not only cases relevant to marriage equality, but also to adoption rights and immigration sponsorship for same-sex families in which one member is a foreign national.
"The courts will pay attention," added Sears.
The decision directly affects a suit in which a Massachusetts federal judge declared DOMA unconstitutional because the federal statute dictated a definition of marriage to the states. The San Francisco Chronicle reported that the Justice Department would no longer proceed with an appeal in the case. Another appeal will also be dropped--a California case in which a federal employee brought suit because she was denied health care coverage for her same-sex spouse.
The article cited Ohio State law professor Marc Spindelman as saying that the decision could make a crucial difference in court challenges not only to Proposition 8--which has already been found unconstitutional in a federal court--but to similar anti-gay laws in other states. To date, voters in 30 states have amended their constitutions in order to deny gay and lesbian families legal recognition of their relationships, and several more states are considering similar amendments. In some cases, the amendments go much further than denying same-sex families marriage equality, denying them any form of legal recognition at all--including civil unions or even domestic partnerships.
Prior to the Obama Administration’s decision, the Justice Department had followed a tradition in which the government defends existing laws from legal challenges, even if those laws are contrary to the sitting president’s personal views. Obama has said that he is opposed to marriage equality for gay and lesbian families, but that he supports legal recognition for same-sex families in the form of civil unions.
Anti-Gay Groups See Opportunity
Anti-gay groups targeting equality measures for same-sex families saw an opening to advance their cause, noted the San Francisco Chronicle. The House of Representatives might now "get lawyers in the courtroom who actually want to defend the law," said Maggie Gallagher, the chairwomen for the National Organization for Marriage (NOM). The group spent millions in California in 2008 to rescind marriage rights for gays and lesbians, and has spent millions since then in states around the nation where marriage equality is, or might become, legal, in hopes of barring gay and lesbian families from marital parity.