Obama's DOMA Shift: Why Public Embrace of Gay Marriage - and Gays - Is Now Certain

Article excerpt

Obama's stance against the Defense of Marriage Act is a key milestone in what looks increasingly like irreversible progress toward full social - and legal - acceptance of gays and lesbians.

The 1996 Defense of Marriage Act (DOMA) was always an odd law. Its main provision, allowing states to refuse to recognize same-sex marriages formed in other states, had no effect: States have never been required to recognize sister-state marriages offensive to their public policy. Its secondary provision, refusing federal recognition to same-sex marriages valid under state law, did not prevent any same-sex couples from marrying. It departed from the long tradition of accepting for federal purposes any marriage valid under state law. And, said federal district judge Joseph Tauro in a decision last summer, it was unconstitutional under the "rational basis" test that governs sexual orientation discrimination in Massachusetts federal courts. Singling out a class of marriages in this unprecedented way was not rationally related to any legitimate state interest.

The Obama administration has defended DOMA's rationality at the district court level and on appeal from Judge Tauro's decisions. But on Wednesday, Attorney General Eric Holder announced the president's conclusion that discrimination against gays and lesbians should be subjected to "heightened scrutiny," not just the "rational basis" test. Heightened scrutiny is a more demanding approach that courts use for particularly objectionable kinds of discrimination, notably race and sex discrimination. In courts where the appropriate test had not been decided, Holder said, the administration would no longer defend DOMA.

Declining to defend a federal law is not unprecedented. Holder was careful to note that the executive branch will continue to enforce DOMA. But Obama's endorsement of heightened scrutiny matters. If courts agree, gay rights litigation will look very different. Rational basis review lets government defend its laws on the basis of any remotely plausible justification, regardless of the legislature's actual purpose. Heightened scrutiny directs courts to look to actual motive, not fanciful conjecture. In DOMA's case, that means focusing on the relevant statements made by members of Congress expressing moral disapproval of homosexuality. Courts will not engage hypotheticals about procreation and childrearing; they will directly confront the issue of whether such views are a permissible basis for discrimination, or whether they are what Holder called "stereotype-based thinking and animus."

The administration's position is a strong indication that the attitude of moral disapproval is on the defensive. It is an important milestone in what looks increasingly like irreversible progress toward full social - and legal - acceptance of gays and lesbians.

Historically, constitutional analysis of discrimination follows a consistent pattern. …