The Justice Department has announced that it will stop defending the constitutionality of Section 3 of the Defense of Marriage Act in court. The Clinton-era law defines "marriage" as a legal union between a man and woman for federal purposes, while Section 2 allows states to avoid recognizing same-sex marriages performed in other jurisdictions. The administration's defenses of the law in court had been a source of tension between gay-rights activists and the White House, which had filed briefs in DOMA's defense that inevitably recapitulated the bigoted reasoning on which the law was premised.
“The federal government has pretended that same sex couples all over the country are not married, so there’s a whole range of federal protections and programs, that are available to people that are married, that they are not entitled to,” explains James Esseks, director of the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project.
According to a letter sent by Attorney General Eric Holder to Speaker John Boehner, he and President Obama decided to stop defending the constitutionality of Section 3 of DOMA, which is the section that states that as far as the federal government is concerned, marriage is only between a man and a woman. Holder's explanation is that previous defenses of the law only required the Department to defend prior decisions, whereas the latest challenges, Pedersen v. OPM and Windsor v. United States, would "require the Department to take an affirmative position on the level of scrutiny that should be applied to Section 3 of DOMA in a circuit without binding precedent on the issue."
What that means is that, since Obama believes there's no compelling state interest that justifies the federal government discriminating against gays, it did not want to establish a new legal precedent suggesting otherwise. Until now, laws discriminating against gays were subject to a "rational basis" test, which gives deference to lawmakers. The Obama administration thinks those laws should be subject to "strict scrutiny," the standard applied to measures that are believed to target groups with racial minorities. This doesn't mean the law is defunct -- if the Supreme Court doesn't overturn it, or Congress doesn't pass legislation doing so, DOMA stays on the books.
"What the government is saying is that one, they need a good reason for treating gay people differently than straight people, and two, that they don’t have a good reason,” says Esseks.
Holder's letter to Boehner straight-up trashes Section 3 of DOMA, and I mean that in a good way. He notes the "significant history of purposeful discrimination against gay and lesbian people," acknowledges that there is "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable," nods at the repeal of "don't ask, don't tell," and finally concludes that "sexual orientation is not a characteristic that generally bears on legitimate policy objectives." Holder's letter reads more like a brief from the organizations challenging the law than the head of a government agency that, until now, has felt obligated to defend it.
Both of Holder's statements carefully state that they will cease to defend Section 3, without commenting on the constitutionality of the rest of the law. Section 2 still allows the states not to recognize same-sex marriages performed in other jurisdictions. But that doesn't mean that the administration necessarily believes Section 2 is constitutional.
"The suits involved challenges to Section 3, so it doesn’t strike me as odd that they’re only referring to Section 3 here," said Marge Baker, vice president of People for the American Way, pointing out that in the cases in question*, no one has challenged the states' authority to disregard same-sex marriages performed in other jurisdictions. "Second Section 3 is the real pillar of DOMA, in terms of the harm it does by allowing the federal government to define marriage [the way it does]."
At the same time, Holder's arguments would seem to preclude the administration defending Section 2 as well, since if sexual orientation is "not a characteristic that generally bears on legitimate policy objectives," then it's not like states have license to violate their residents' equal protection rights. But for the sake of clarity, the administration hasn't declared they will cease defending DOMA entirely -- merely the section of the law that prohibits federal recognition of same-sex marriage.
"It’s transparent to us that state restrictions don’t pass muster under the proper constitutional test either, and just as DOMA fails the constitutional test, so too do state restrictions on same-sex couples," Esseks says. "But the government hasn’t addressed the second point."