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.
When DOMA was passed, it affected exactly zero American marriages: no state was yet marrying same-sex pairs, or recognizing same-sex couples who had married in another country. But by now, approximately 80,000 same-sex couples have legally married in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia, or were married in another country and are recognized as married by their home state. (Maryland, New York and New Mexico have announced officially that they recognize same-sex marriages performed elsewhere.) Which means that tens of thousands of couples face the annoyance and cost of being married under state law but single to the US government. As half of one such couple, let me tell you, it is really annoying and costly. We are legal strangers when it comes to such federal niceties as Social Security benefits, health insurance benefits (my wife is taxed about $2,000 if I’m listed on her health insurance policy), pensions and taxes.
Is that constitutional? Does the federal government have the right to pick and choose which marriages it recognizes and which it ignores? That question is in front of federal courts in Massachusetts, in California and in more recently filed cases in Connecticut and New York. Imagine that Edie and Thea had been together for forty-four years; that they married in Canada in 2007; that their home state of New York recognized their marriage; but that when Thea died in 2009, that the US government stepped in to tax what Thea left to Edie as if the two were not married (and therefore owned everything in common) but were complete strangers—sticking the widow with a tax bill of $350,000. That’s the case of Windsor v. United States , which the ACLU filed on Edie Windsor’s behalf in November 2010 in New York. At the same time, Gay & Lesbian Advocates & Defenders filed a similar case, Pedersen v. Office of Personnel Management , on behalf of a group of plaintiffs in Connecticut. All these lawsuits argue essentially that the US government has no power to decide which married couples it will consider legally married; it has to treat all marriages equally. In Massachusetts this past July, Judge Tauro agreed , and declared DOMA unconstitutional; that decision is now on appeal to the First Circuit.
In the Second Circuit cases, the Obama administration had a March 11 deadline for filing briefs explaining what position they were going to take on DOMA. That involved deciding whether the standard for review of the constitutionality of the law should be merely the “rational basis” test, in which the government has broad authority to make laws in its interest. “That’s saying that antigay classifications should be treated like rules about the height of a sneeze guard at a salad bar,” says Pizer. If the government says twelve inches is better than eighteen inches, hey, they have the authority to make that decision.
Or should DOMA be subject to “heightened scrutiny”? “Heightened scrutiny,” Pizer explains, means “when it comes to the rights of a minority that has been beaten up by majorities for a long time, that type of different treatment or discrimination should be viewed with suspicion.” Under that standard, the government has to prove that public welfare is really protected by, in this case, the federal government withholding Social Security benefits from the surviving spouse in a same-sex marriage. That’s harder to do. When a government body (say, a state university) makes different rules based on race, the federal courts automatically judge it with heightened—even “strict”—scrutiny, forcing the government to prove that there’s a good reason for that distinction. But the Supreme Court has never required such an automatic test for sexual orientation. In fact, until the Supreme Court struck down all sodomy laws in Lawrence v. Texas , in 2003, many other courts assumed that if it was okay to criminalize consensual private sexual behavior between two women or two men, then it was fine to discriminate in just about any other way. But the federal government and courts haven’t reassessed that since 2003—until now. Would the government argue that laws about sexual orientation should be treated like sneeze guards, fairly neutral protections for public welfare—or laws affecting the rights of a mistreated minority, probably passed just because majorities are afraid of getting nonexistent cooties?
Here’s where things get interesting and technical. In the paired Massachusetts cases—Gill v. OPM, brought by GLAD, and Commonwealth of Massachusetts v. Department of Health and Human Services, brought by Massachusetts Attorney General Martha Coakley’s office—the US government had already argued in favor of DOMA. But the Justice Department says that it did so because the First Circuit had previously decided that sexual orientation could be reviewed on a “rational” basis: any old justification would do. The Second Circuit has never suggested that it knows what standard to apply to cases involving lesbians and gay men. So the Department of Justice had an obligation, by March 11, to tell the court what it was going to argue.
In Holder’s letter to Congress, the Obama administration said two important things. First, if the government makes distinctions among people based on their sexual orientation, the court should treat that distinction with suspicion—and unless the government could prove that it had a very good reason to do so, the law is unconstitutional. Second, the Justice Department believes that the US government does not have a good reason to refuse to recognize same-sex marriages. In fact, Holder’s letter says, the way Congress debated DOMA at the time contained “moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus” that’s illegal. The Department of Justice said that it can’t, and won’t, defend that kind of discrimination. That’s why Holder was writing to Speaker of the House John Boehner: to let Congress know that the Obama administration will not defend DOMA in court—either in the First or Second Circuits—and that Congress if wants to, it should step in to do so itself.
The Obama administration will continue to enforce DOMA. The executive branch can’t overturn a law; only courts can do that. Nor can the executive branch repeal a law; only Congress can do that. The Department of Justice can’t even declare that “heightened scrutiny” applies; the federal courts decide that. But the Obama administration won’t defend the law.
What does that mean in practice? No one is quite sure yet. Will the Justice Department withdraw its briefs defending DOMA in the Massachusetts cases?If the Second Circuit decides that DOMA should face rational basis review instead of heightened scrutiny, will the DOJ file briefs defending the law it says it cannot defend? Apparently not even the Justice Department knows yet exactly what they’ll do. Gary Buseck, GLAD’s Legal Director, told me that he was getting different answers from different Justice Department lawyers. Late Thursday night, DOJ filed a similar letter  in Gill and Commonwealth. Everyone involved wants a little more time to see what Congress is going to do. Will the House vote to step in and hire a lawyer, and if so, which one? Will that law firm or organization ask for more time to file briefs in one or all cases? What happens if the First Circuit upholds Judge Tauro’s decision and declares DOMA unconstitutional: will the Justice Department refuse to appeal, saying they agree—thus striking down DOMA in one of the federal courts but leaving it intact in other circuits, depriving the Supreme Court of its opportunity to either uphold or strike down DOMA for the country as a whole? GLAD is in the position of guessing what all this means; when she forwarded the newly filed letter to me at late on Thursday, Mary Bonauto e-mailed, “This appears to be a statement that they will cease to defend to the extent that the court decides heightened scrutiny applies. Otherwise they will continue to assert that DOMA has a rational basis.” But no one really knows.
Here’s what’s clear, according to Evan Wolfson, executive director of Freedom to Marry, “It’s a momentous step forward to have the president and the chief law officer of the US government say that sexual orientation discrimination must be presumed unconstitutional, not just rubber-stamped and accepted as okay. That clear moral and legal determination will reverberate positively throughout the law.”
In past couple of days, the Maryland Senate voted to open its marriage laws to same-sex couples, and sent that marriage equality bill to that state’s lower chamber; the governor says that if passed, he will sign. The federal judge in Golinski v. Office of Personnel Management, Lambda Legal’s DOMA challenge in California, wants the Justice Department to explain  why he shouldn’t simply rule for his plaintiff immediately. Hawaii’s governor signed a civil unions bill. Senator Diane Feinstein has announced that she’s going to file a bill to repeal DOMA, and Senator Patty Murray says she’ll sign on. Members of the House are planning to reintroduce the DOMA repeal bill they put forward in the last session. No one expects repeal to pass during this Congress, but adding more co-sponsors and building political momentum just got easier—a lot easier, according to some advocates. With the Justice Department’s decision to stop defending different treatment of lesbians and gay men, the cause of equality just took a huge step forward. We’re not yet to the promised land. But it’s just over the horizon.