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DOJ on DOMA: 'Sexual orientation should be subject to heightened scrutiny'
News Update posted Feb. 24, 2011
by Rex Wockner
2011-03-02

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President Barack Obama and the U.S. Justice Department announced Feb. 23 that they no longer will defend the Defense of Marriage Act in various ongoing lawsuits against the ban on federal recognition of states' same-sex marriages because the ban is unconstitutional.

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," wrote Attorney General Eric Holder. "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination."

The section of DOMA that the government is abandoning states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

A second part of DOMA purports to give the 50 states cover to refuse to recognize other states' same-sex marriages.

Holder said that the Justice Department's defenses of DOMA Section 3 up until this point occurred in federal circuits where binding precedents "hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment."

Rational basis is a less-demanding standard of legal review than heightened scrutiny.

But "Section 3 of DOMA has now been challenged in the Second Circuit ... which has no established or binding standard for how laws concerning sexual orientation should be treated," Holder said. "In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply."

Faced with that situation, the administration concluded that "classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Holder said. " ( DOMA ) fails to meet that standard and is therefore unconstitutional."

He said that in addition to not defending Section 3 of DOMA in the 2nd Circuit, the government also will take the position that, despite precedents to the contrary, the heightened standard of review should apply to Section 3 in any circuit where DOMA lawsuits are ongoing or occur. As such, the government will cease its defense of Section 3 in any circuit.

Holder informed Congress of his and Obama's decision, so that any members of Congress who may wish to take up the defense of DOMA themselves know that it now is up to them to do so.

"Much of the legal landscape has changed in the 15 years since Congress passed DOMA," Holder said in conclusion. "The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military's Don't Ask, Don't Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. ... ( T ) his Administration will no longer assert its constitutionality in court."

Although the government's decision to abandon its defense of DOMA is huge news, the guts of the decision are even bigger news -- that discrimination based on sexual orientation should be legally subject to heightened scrutiny by courts. When governments treat a particular group of people differently in any way, it becomes much more difficult for that differential treatment to survive legal review if based on a characteristic the people share ( sexual orientation in this case ) that triggers heightened scrutiny in court. Heightened scrutiny already exists in regard to governmental treatment based on such things as race and gender.

Human Rights Campaign President Joe Solmonese called the day's developments "monumental."

Freedom to Marry called them "a momentous step forward."

"This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people," echoed Lambda Legal's legal director, Jon Davidson. "The president and the attorney general recognized today what we have been saying in court since the day we opened our doors: Discriminating against people on the basis of sexual orientation should be presumed to be unconstitutional, and unconstitutional laws should not be defended."

"We are proud of our part in the precedent-setting cases leading to today's announcement," Davidson continued. "Both Romer v. Evans and Lawrence v. Texas are landmark U.S. Supreme Court cases litigated by Lambda Legal that established among other things that the equal protection guarantee in the federal Constitution applies to gay people. The attorney general expressly relied on these cases in his letter to Congress explaining why laws discriminating against people based on their sexual orientation are suspect."

Lawrence v. Texas effectively struck down all remaining U.S. bans on gay sex. Romer v. Evans struck down a Colorado state constitutional amendment that banned enactment of gay rights laws in the state. The Supreme Court said the Colorado amendment was based solely on anti-gay "animus" and that states cannot zero in on something like sexual orientation and then deny protection "across the board" to the group of people that shares the trait.

"The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence," the court declared.

The legal director of the National Center for Lesbian Rights, Shannon Minter, called Holder and Obama's announcement "history-changing."

"The president and the attorney general were absolutely correct to conclude that there can be no 'reasonable defense' of a law intended only to disadvantage and harm some families, while helping none," Minter said. "The president and the attorney general were also right to conclude that because LGBT people have suffered a long history of discrimination in this country, laws that target people based on their sexual orientation are highly likely to be based on prejudice and should be presumptively considered unconstitutional."

"The president's leadership on this issue has forever changed the landscape for LGBT people in this country," Minter said. "For the first time, the president and the Department of Justice have recognized that laws that harm same-sex couples cannot be justified. This is the beginning of the end, not just for the mean-spirited and indefensible Defense of Marriage Act, but for the entire panoply of laws that discriminate against same-sex couples."


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