Both sides on the marriage equality front are hyper-ventilating about the Obama administration's decision not to defend in court the third section of DOMA as constitutional with respect to already married same-sex couples in various states and DC. Here are two representative emails. From the Christianist right, a fundraising email from NOM:
This is it. The whole ball game. If we back down here, it will be all over.
From gay blogger, Rex Wockner:
DOMA can't withstand heightened scrutiny, Prop 8 can't withstand heightened scrutiny, and pretty much any governmental anti-gay thing ever simply cannot withstand heightened scrutiny. Huge.
But there are some obvious points against this analysis, it seems to me. The first two sections of DOMA remain. So no state will be forced to recognize civil marriages from another (something that was the case and would be the case without DOMA, given legal precedents). Indeed, DOMA will remain in full and enforced by the DOJ until or unless the Supeme Court rules it as unconstitutional or the Congress repeals it in whole or in part.
What's left is the federal government's recognition of heterosexual civil marriages in one state but not of homosexual civil marriages in the same state - and it's here that attorney general Holder says that, given legal precedents already set, making such a distinction, as DOMA's Section 3 demands, violates equal protection rights under the Fifth Amendment. In the view of the Justice Department, laws discriminating in that way against gays as a class require "heightened scrutiny" in the Courts and when this is applied, it is clear that irrational discrimination is unconstitutional, and the Justice Department will no longer make that argument.
The reason Holder gives is that two new cases require the federal government to take "an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue." If forced to make such a judgment, which it hasn't had to make before, the Obama DOJ refuses. And so it withdraws from the defense of that provision of the law in the courts. Generally, the Obama administration has been punctilious in defending DOMA and even DADT in the courts, as well as other legislation on the books. But, Holder argues,
"this is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute 'in cases in which it is manifest that the President has concluded that the statute is unconstitutional,' as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001). "
Who can defend the statute? The Congress:
Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.
And so Obama has basically tossed the ball on this to the Speaker of the House, John Boehner. It's interesting that Boehner's immediate response is not to grandstand on the core issue but to change the subject to the timing:
"While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation."
But these cases are pending and the DOJ had to make a decision one way or the other. So will Boehner. This used to be a no-brainer. But as the polls show greater acceptance of gays and marriage equality, as the old arguments against it begin actually to repel previously anti-same-sex marriage legislators, as in Maryland, the Speaker is being offered to forge a defense of such discrimination in the courts. He seems queasy about that. And he should be.
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