How should we understand Obama's decision on the Defense of Marriage Act (DOMA)?
The Meaning of Obama’s DOMA Decision
Jim Burroway in BoxTurtleBulletin
The obvious question behind today’s announcement that the Obama Administration would not defend the so-called “Defense of Marriage Act” in two cases filed last November is this: What does this mean today?
So far, not much. DOMA is still on the books, and it has not been declared unconstitutional. It does mean however that the Justice Department won’t defend section 3 of the statute which bars federal recognition of marriage of same-sex couples when that portion of the law is challenged in court. And so one possibiliy is that we may have a national patchwork of DOMA enforcement — it is kaput where Federal judges or their Appeals Courts have ruled against it, while it remains on the books where the courts have upheld the law or haven’t ruled. That would make, for example, the IRS’s administering the tax code a logitical nightmare, with some gay couples filing as married couples in some jurisdictions while others are barred from doing so elsewhere. Immigration can become a similar quagmire for transnational couples. Without, ultimately, either an appeal somewhere to the Supreme Court or repeal of DOMA itself, it’s going to be very intresting — and probably frustrating — for a very long time.
This article pointed us to two key links:
1) From the New York Times
Congress may decide to appoint its own lawyers to defend the law, or outside groups may try to intervene in the cases in order to mount legal arguments in the law’s defense. ... Citing an executive-branch duty to defend acts of Congress when plausible arguments exist that they are constitutional, the Obama administration had previously argued that legal challenges to the Defense of Marriage Act should be dismissed.
But those lawsuits were filed in circuits that had precedents saying that when gay people s ay a law infringes on their rights, judges should use a test called “rational basis” to evaluate that claim. Under that standard, the law is presumed to be constitutional, and challengers must prove that there is no conceivable rational
government basis for enacting it, a hard standard for challengers to meet.
But the new lawsuits were filed in districts covered by the appeals court in New York. That court has no precedent establishing which legal test judges should use when evaluating claims that a federal law violates gay people’s rights.
That vacuum meant that the administration’s legal team had to perform its own analysis of whether gay people were entitled to the protection of a test known as “heightened scrutiny.” Under that test, it is much easier to challenge laws that unequally affect a group, because the test presumes that such laws are unconstitutional, and they may be upheld only if the lawmakers’ purpose in enacting them served a compelling governmental interest.
and 2) from the National Journal
The announcement by the Justice Department came just minutes before White House press secretary Jay Carney’s regular briefing. Carney took care to press upon reporters that the president’s personal view about DOMA -- that it is unfair to gays and lesbians -- is distinct from the decision. The announcement from the administration came because of a court-imposed deadline from the 2nd Circuit. Carney also said that the U.S. government will still be a party to these cases to allow the courts to make a recommendation about constitutionality and to allow other interested parties, such as Congress, to defend the law if they wish. ... The announcement today does not overturn the law. That would take an act of Congress or a final finding by the judicial branch, probably the Supreme Court. But it changes the vector of the legal cases considerably. Privately, the administration believes that five justices of the Court, including Anthony Kennedy, the swing vote, would find parts or most of DOMA invalid if the federal government withdrew its arguments in defense of it.