Jonathan Capehart: Obama's historic action against DOMA

By Jonathan Capehart
Thursday, February 24, 2011; 4:01 PM

When the Supreme Court handed down its decision in Lawrence v. Texas in June 2003, a wave of euphoria rippled through the gay community across the country. Not only did the nation's highest court affirm their existence and their right to love without fear of criminal prosecution, but it also made the argument with powerful and moving language. The euphoria is back.

For the first time, the president of the United States and the chief law enforcement officer of the United States have said with one clear voice that a law which denies married same-sex couples equal protection under the Constitution is not only wrong but also unconstitutional. With one statement, the DOMA debate changed, and gay men and lesbians gained a powerful ally in court, armed with a powerful argument.This reversal was not taken lightly. It is longstanding practice for DOJ to defend the laws of the nation if reasonable arguments can be made. Yesterday, Justice announced there were no such arguments in the cases before a federal court in the Second Circuit.

In a six-page letter to House Speaker John Boehner yesterday, Attorney General Eric Holder announced that President Obama believed Section 3 of the so-called Defense of Marriage Act is unconstitutional and that his administration would no longer defend the repugnant statute in court. The president and the attorney general came to this conclusion after determining that gays and lesbians deserved a higher level of scrutiny in two new lawsuits challenging DOMA, which were filed in jurisdictions "without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny."

Republicans and others are wondering why Obama is wading into a controversial social issue when his focus, they say, should be on taking the paddles to the economy and job creation. Last I checked, the president can and must do more than one thing at a time. More importantly, though, a March 11 filing deadline in those two cases demanded that the justice department take a stand. As Holder noted in his letter to Boehner, those lawsuits required DOJ to "take an affirmative position on the level of scrutiny" to be applied. Holder is doing his job and upholding the Constitution.

Achieving a heightened level of scrutiny in discrimination cases isn't easy. Four criteria must be met.

(1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

The Holder letter goes on to show how gays and lesbians meet each of the four factors. It also takes clear stands in arguments that have been used to denigrate them and deny them equal protection. Holder reiterates the administration's rejection of the discredited view that heterosexual marriage must be maintained for "responsible procreation and child-rearing." The belief that being gay is a choice or subject to moral approval is "incorrect." And to show that DOMA was motivated by bias and negative stereotypes, Holder's letter footnotes some of the greatest hits (read, ugly statements masquerading as facts) from the legislative record.

So, what's next? There are a few things to keep in mind.

1.) What Obama and Holder have determined after a careful analysis is that discrimination cases involving sexual orientation deserve heightened scrutiny and that Section 3 of DOMA is unconstitutional. Now it is up to the district court within the jurisdiction of the Second Circuit Court of Appeals to decide whether it agrees. But no matter what happens, as Evan Wolfson of Freedom to Marry told me, "You can't unring the Liberty Bell."

2.) DOJ attorneys have been instructed to articulate the new DOMA stance to the courts in other pending DOMA cases.

3.) The ball is now in Boehner's court to decide whether Congress will defend DOMA now that justice won't. But he doesn't have much time. As I've already mentioned, the deadline for filing arguments in the case is two weeks from tomorrow.

DOMA, like the ban on gay men and lesbians serving openly in the military, is an act of Congress that should be repealed by an act of Congress. Holder's announcement yesterday jump-started efforts in the House (uphill battle) and the Senate (less uphill but uphill nonetheless) to do just that. But I don't hold out much hope that they'll be successful. This fight is going to be waged, won or lost in the courts. It's a risk, especially with the current make-up of the Supreme Court. And it's a risk worth taking.

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