"Obama To Stop Defending Section 3 of DOMA"

Obama To Stop Defending Section 3 of DOMA
Posted by Adam Serwer on February 23, 2011

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.

http://www.prospect.org/csnc/blogs/adam_serwer_archive?month=02&year=2011&base_name=obama_to_stop_defending_doma#123995