There's lots to celebrate about the Justice Department's statement that it will no longer defend the so-called "Defense of Marriage Act" (DOMA) in court. That statement makes a few things clear:
- The Obama administration agrees with what we've been saying for years – that when the government treats gay people differently than straight people, it's got to have a very good reason for the discrimination (this is what courts call applying "heightened scrutiny").
- The administration agrees that it doesn't have a good reason for respecting the marriages of heterosexual couples while pretending that married same-sex couples aren't actually married (which is what DOMA does, after all).
- Since the administration doesn't have a good reason for the discrimination, it's going to stop defending DOMA, both in our case and in others. This is a video about our case challenging DOMA that we filed along with Paul, Weiss, Rifkind, Wharton & Garrison LLP.)
Up until now, the federal government has taken the position that discrimination against lesbians and gay men is almost always OK, that it's presumed to be constitutional. With yesterday's announcement, the government has recognized that under the proper constitutional analysis, it needs a good reason to treat gay people differently from everyone else.
The shift is quite simply amazing. Amazing to have a government that decides an important issue of constitutional law based on principle rather than politics. Amazing to see a government switch gears when faced with a case that requires it to address the legal issues head-on. Watch this video of our client, Edie Windsor, talk about what yesterday's decision means to her:
The government's shift of position is also amazing because of what it means not just for DOMA, but for LGBT rights more broadly. If the courts ultimately agree that heightened scrutiny applies whenever the government treats gay people badly, then it's not just DOMA that becomes hard to defend. So do state adoption and foster parenting laws that exclude gay people. And states' refusals to provide health care benefits or pension protections to the domestic partners of state workers. And public schools' decisions to ignore anti-LGBT harassment or exclude same-sex couples from the prom. And government rules like the military separation pay disparity that we've challenged in court. Heightened scrutiny will affect every nook and cranny of LGBT rights law.
For a constitutional lawyer, moments like this don't come around very often. Yesterday was a day when America's commitment to the rule of law has been reaffirmed. Our Constitution promises that the government will treat everyone equally, and today's announcement is a recognition that that constitutional promise applies to LGBT people, too. It doesn't get much better than that.
The Department of Justice is required to give Congress an opportunity to defend DOMA. And Speaker of the House John Boehner has until March 11 to decide whether to hire a lawyer to defend DOMA, now that the Justice Department no longer will. That's where you come in: Urge your members of Congress to stay out of the litigation, and not defend DOMA.
But if the House does decide to press forward and defend DOMA, we'll be there too, ready to fight.