On Wednesday, Attorney General Eric Holder stunned lesbians and gay men and allies by announcing that the Obama administration will no longer defend Section 3 of the 1996 Defense of Marriage Act (DOMA).
For those who saw only the headlines, the immediate question was: is DOMA, the 1996 law limits marriage, for purposes of the federal government, to one man and one woman, dead? The short answer: no. For now, two women or two men who are married in their home states are still single for the purposes of taxes, Social Security benefits, immigration and all other federal legal matters. Although DOMA is clearly on life support, it is still the law, and it will be until Congress repeals it or a higher federal court declares it unconstitutional. (Congress itself can defend DOMA against ongoing court challenges, and outside groups can petition to intervene on DOMA’s behalf.)
But the headlines missed the technical but important note in Holder’s announcement: the Obama administration believes that any law affecting lesbians and gay men deserves “heightened scrutiny” by the courts. That obscure legal term means that the Obama administration believes—and will argue officially—that the federal and state governments can’t treat lesbians and gay men any less well than it treats our heterosexual siblings without giving an exceptionally good reason. “Because we want to” is not a good reason. “Because it’s always been this way”: ditto. Because they’re not as good as we are; because they’re different; because it says so in the Bible; because they’re bad models for children; because we don’t want them spreading their cooties in our offices: ditto, ditto, ditto.
The Obama administration doesn’t get to decide the standard of review; that’s the job of the federal courts. But having the government argue that courts should be suspicious if lesbians and gay man are treated differently than heterosexuals is extremely significant. As Jenny Pizer, Lambda Legal’s Marriage Project Director, puts it, “what the government says usually gets greater weight than what any other party says” in federal court. And since those are, basically, the arguments against treating lesbians and gay men equally under the law, the Holder/Obama announcement will affect every gay- and lesbian-related court claim about government treatment, whether that’s in the military, in federal offices, in marriage or in schools, from now on.
So what, exactly, does that mean for DOMA—and for everything else about gay and lesbian lives?
Usually, states get to decide which marriages they will perform, and the US government recognizes them all equally: if a state decides that first cousins can marry, the IRS and the Social Security Administration must treat that couple as married. DOMA offers the only exception, saying that the federal government does (Section 3), and other states (Section 2) may, define marriage as a union only between one man and one woman.