1. President Barack Obama, the former constitutional law lecturer at the University of Chicago Law School, finally found one right in his wheelhouse; determining which standard of judicial review ought to apply to Section 3 of the Defense of Marriage Act and why. That section defines marriage as only between one man and one woman, as husband and wife.
2. Although the Justice Department's announcement Wednesday was couched in terms of looking ahead to pending litigation in the 2nd U.S. Circuit Court of Appeals, the real moving force here is U.S. District Judge Joseph Tauro. Last July, the Republican appointee, who is revered among federal judges, simply vitiated Section 3 of the DOMA in a ruling now on appeal to the 1st U.S. Circuit Court of Appeals. When the Defense of Marriage Act finally falls, and it surely will, Judge Tauro's ruling will be seen as the turning point. Here, it gave great cover to the administration.
3. There are two components to Wednesday's move by the White House and Justice Department. The first, the declaration by Obama that he believes Section 3 is unconstitutional, is more significant politically than legally. After all, it's the federal judiciary and not the executive branch which gets to decide which laws are valid or not, a point Attorney General Eric Holder was wise to mention. Also wise was Holder's quick attempt to reassure Congress that it's still free to defend the law in court. And some lawmakers surely will.
4. The second component of the policy reversal, that Justice Department lawyers now won't be defending that portion of the law in the 2nd Circuit, and will from now on consider it suspect legislation requiring heightened judicial scrutiny, is more significant legally than politically. After all, Judge Tauro declared that no "fairly conceivable set of facts" could justify Section 3, meaning that the law failed to pass his muster even under the lower constitutional review standard. Under the higher standard? Forget it. This suggests that the Marriage Act will become less and less legally tenable.
5. The fate of the DOMA ought to be of particularly big interest at the Pentagon and anywhere else our service members stand a post. Even after the military's odious "Don't Ask/Don't Tell" termination policy ends, same-sex spouses of soldiers will not be entitled to the same benefits as opposite-sex spouses of soldiers because of the Marriage Act.
6. If and when the DOMA falls, state prohibitions on same-sex marriage won't necessarily (or even likely) fall with it. There are other reasons why it is legally unworkable in the long-term to allow some states to recognize marriage and others not to. At some point, the Full, Faith and Credit Clause has to kick in, doesn't it? And don't forget Proposition 8! But this isn't that.
7. Three federal judges and now the feds. In the span of less than one year, three federal trial judges have ruled anti-gay laws unconstitutional. First, it was Judge Tauro. Next, it was U.S. District Judge Vaughn Walker declaring unconstitutional California's anti-same-sex marriage initiative, Proposition 8. Last, it was U.S. District Judge Virginia Phillips declaring unconstitutional the military's "Don't Ask/Don't Tell" policy. Two of those judges, Tauro (Nixon) and Walker (Bush), are Republican appointees and both of them are currently on senior status. Since making his ruling, in fact, Judge Walker has announced his retirement and retires, well, this week if he hasn't already.
8. Think of what Holder and the President did today as similar to what California's executive branch officials did last year when they decided to give up defending Proposition 8 in court. That decision, like this one, did not end litigation. But it sure did complicate it, didn't it?
9. With the Justice Department backing away from the fight, it will be interesting to read the arguments defending the Marriage Act made by its supporters in Congress. The very same folks who are decrying Congressional power to regulate the purchase of health insurance will be decrying the lack of Congressional authority to regulate marriage. Just sayin'.
10. The most poignant part of the brief Holder memo? Its final paragraph: "Much of the legal landscape has changed in the 15 years since Congress passed DOMA..."
Photo credit: Mayra Beltran/AP-Houston Chronicle
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