Despite the insistence in recent months by Assistant Attorney General Tony West that the Justice Department would continue to uphold its "institutional responsibility" to defend the constitutionality of congressional statutes, however controversial, recent court cases in a district with no precedent on questions of discrimination based on sexual orientation forced the Administration's hand. In a letter from Attorney General Holder to House Speaker John Boehner (R-OH), Holder explained that the lack of precedent would require the Justice Department to "take an affirmative position on the level of scrutiny" applied to DOMA's constitutionality.
Holder's letter explains:
"The President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional."Holder goes on to explain that, given the "significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities;" increasing scientific evidence indicating the immutable nature of sexual orientation; the recent passage of state le repeal of 'Don't Ask, Don't Tell;' and the absence of federal protection on the basis of sexual orientation, Section 3 of the Defense of Marriage Act fails to meet the heightened level of scrutiny required to defend the law as constitutional.
The DOJ's new posture on DOMA has set the stage for the inevitable reactionary backlash from the conservative establishment. Likely to help lead the charge is current House Judiciary Committee chair Lamar Smith (R-TX), who has lambasted the administration in the past for not doing enough to defend DOMA, and has personally offered to serve as counsel in the two pending trials. However, as our own Matt Redovan has pointed out, the legal arguments upon which past rulings on same-sex marriage have rested are deeply flawed in both their moral and legal content. Although the constitutionality of DOMA will likely work its way to the very top of the federal court system, the Obama Administration's decision to no longer defend such a blatantly bigoted piece of legislation represents a very positive step in the right direction toward equal rights for all of our citizens.