February 24, 2011 2:59 pm ET - by Kerry Eleveld
The first time the Defense of Marriage Act (DOMA) came up in the White House press briefing and former press secretary Robert Gibbs was asked what President Barack Obama was doing to make sure legally married couples were recognized at the federal level, the blood drained from Gibbs's face.
"I will - I have to go check on that. I honestly don't know the answer to that," he said on May 18, 2009. It was the first time I had been called on by Gibbs and the first crack at a question posed to this administration by a reporter from an LGBT outlet. It became a mini youtube sensation among queer activists hungry to see the Obama administration begin to live up to the promise of the '08 election cycle.
On Wednesday, the Department of Justice (DOJ) finally answered that question, issuing a statement that the president had instructed the department to stop defending DOMA lawsuits that challenged section 3 of the statute - the plank that prohibits the federal government from recognizing state sanctioned same-sex marriages.
"[T]he 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. 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," read the statement. "Given that conclusion, the President has instructed the Department not to defend the statute in such cases."
It was a bold move by President Obama and one he appeared to already be weighing during an interview last December when I suggested that he could stop defending DOMA.
"I have a whole bunch of really smart lawyers who are looking at a whole range of options. My preference wherever possible is to get things done legislatively because I think it - it gains a legitimacy, even among people who don't like the change, that is valuable," he responded. "That may not be possible in DOMA's case. That's something that I think we have to strategize on over the next several months."
But it's worth remembering that the president didn't begin considering those options in a vacuum. The first DOMA brief the Justice Department filed in the summer of 2009 looked like a relic of the Bush administration, invoking instances of child brides and incestuous marriages to lay the groundwork for why some states might not want to recognize same-sex marriages performed in other states.
The first outlet out of the box with a full-throated criticism of that brief was the AmericaBlog.com - they pretty much broke the story and had an opinion about it before any other news outlets began writing.
"We just got the brief from reader Lavi Soloway. It's pretty despicable, and gratuitously homophobic," wrote John Aravosis, AmericaBlog founder. "I cannot state strongly enough how damaging this brief is to us. Obama didn't just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn't motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer [sic] and Lawrence shouldn't be interpreted to give us rights in any other area (which hurts us in countless other cases and battles)."
The post went on, vociferously denouncing the president and DOJ and the affront the administration had committed against our basic humanity as LGBT Americans. Joe Sudbay of AmericaBlog recently recalled the moment and said to me, "It was scary territory. It was the first time anyone from Obama's progressive base really went after him, really took on the White House."
AmericaBlog's call to arms was the first sign of serious discontent that started seeping into mainstream media, and nearly every major LGBT organization eventually denounced the brief as well. It was a rare moment of LGBT unity, where bloggers, activists, and large advocacy organizations inside and outside of Washington spoke with one voice. For queer activists, the brief was an unmistakable sign that no one in a position of power at the Justice Department -- or the White House for that matter -- really understood LGBT issues well enough to cry foul before the brief was filed.
But the unified outcry, the rage derived from pain, put the administration on a journey that culminated in Wednesday's announcement. Over the course of the next few DOJ DOMA filings, incremental gains followed. Government lawyers scrapped the most offensive arguments from the original brief and even began to state that, as a matter of policy, the administration opposed the law, thought it was discriminatory and should be repealed.
As Lambda Legal's Jenny Pizer told me several weeks ago, "They've reduced the argument down to semi-incoherent drivel that doesn't defame people."
The government's sole constitutional justification for DOMA became that it preserved "the status quo" of not recognizing same-sex marriages, and ensured "consistency in the distribution of federal marriage-based benefits" while states experimented with various forms of relationship recognition. Of course, the Department of Justice's rendering of "status quo" ignored over a hundred of years of case law that has invested states with the power to designate what constitutes a legal marriage. DOMA, in fact, had distinguished marriages between same-sex couples as the singular exception to that rule.
As the administration continued defending the law and taking blows from activists every time DOJ filed a new brief, political and legal advocates kept pushing the president not to defend the law and mainstream news outlets slowly but surely stopped reporting that the administration was "compelled" to defend a law duly enacted by Congress. Was it customary to defend? Yes. Compelled - no. The President takes an oath to "uphold and protect" the Constitution of the United States and is not compelled to defend a statute that he or she deems unconstitutional.
In the meantime, Congress voted to repeal "don't ask, don't tell" and the president signed it into law. The sky didn't fall, the union wasn't brought to the brink of destruction, people weren't protesting in the streets. Instead, Obama held a press conference touting all his lame-duck legislative victories and rode off into the sunset of a Hawaii vacation. The policy that so many White House advisors had tagged as "toxic" in the earliest days of the administration turned into a huge win for President Obama that didn't seem to phase independents and attracted unvarnished praise from his progressive base - a monumental first for the administration.
The White House was so jazzed about repeal and the praise they received, they even fashioned their very own highlight reel entitled, Behind the Scenes: Signing Don't Ask, Don't Tell Repeal.
Against that backdrop, an opportunity presented itself: two little noticed civil cases pending in the federal court's 2nd circuit put the Justice Department in a unique bind. Although the lawsuits' challenge to DOMA's constitutionality mimicked that of other suits, the circuit in which they were filed had no binding precedent on which standard of judicial review should be used - a "rational basis" review or the more rigorous "heightened scrutiny" test that is often applied to groups of people that have historically been the target of discrimination. Distinct from previous DOMA suits, in the 2nd circuit the Obama administration would have to articulate which standard of review should be applied to lesbians and gays as a group.
This stealth judicial offensive was no accident, LGBT legal groups had been mounting very narrowly tailored challenges to section 3 of DOMA - the most suspect part of the statute given the nation's history of allowing states to define marriage. Filing cases in a circuit that had no binding precedent on which government lawyers could rely was an extension of their precision approach to dismantling the law.
Meanwhile, highly respected Constitutional law scholars and allies of President Obama were increasingly concluding that, on the merits alone, heightened scrutiny was clearly the proper test. Tobias Barrington Wolff, Obama's LGBT policy advisor during the '08 election, had authored a brief on behalf of One Iowa to the Iowa Supreme Court in the spring of 2008 that made the case for heightened scrutiny.
A position also espoused by the man who helped recruit Obama to the University of Chicago Law School back in the early '90s:
"[L]ike laws that discriminate against African Americans, ethnic minorities and women, laws that discriminate against gays and lesbians must be tested by heightened scrutiny under the Equal Protection Clause," wrote Geoffrey Stone, Professor of Law at UIC, in a Huffington Post piece last week.
But when I contacted Stone and asked him why the administration might choose not to apply the correct standard, he didn't hesitate: "It would make it impossible to win," Stone belted out. Under heightened scrutiny, government lawyers would have go beyond providing a "rational basis" for DOMA and prove that the law furthered an important governmental interest.
As Stone concluded in the piece, when put to the heightened scrutiny test, "it is difficult to think of any interest furthered by the Defense of Marriage Act that would enable that misguided law to pass constitutional muster."
This wedged Obama and his DOJ between a rock and a hard place.
For an advocate like Pizer, who directs Lambda Legal's marriage project, the government shouldn't willfully argue for the wrong judicial test -- the rational basis test -- to win cases at the expense of a disadvantaged minority.
"Why do they want to win a case that's about maintaining unjust discrimination against a certain group - this should be a case in which they delight to lose," she had said prior to Wednesday's announcement.
But conceding the higher burden of proof would pressure government lawyers to put forth more offensive reasoning for why the government had a compelling interest to not recognize same-sex marriages.
"For the administration to make that argument would be really painful," Stone explained to me last week, "They would have to make arguments about the importance of banning same-sex marriages that they would truly gag on."
Exactly the type of arguments that rallied the wrath of the queer community against the administration's first DOMA brief in the first place, during the summer of 2009.
President Obama, Attorney General Eric Holder and White House advisors clearly concluded that they no longer wanted to advance an improper judicial argument in support of a wrongheaded law that further discriminated against an aggrieved minority.
They will be heartened to find that times have changed significantly since DOMA was signed into law in 1996 and a Gallup poll found that 68% of the nation opposed gay marriage. While polls today continue to seesaw back and forth over the 50% fault line on marriage equality, two consecutive polls last August/September found for the first time in the nation's history that a majority of Americans believe same-sex marriages should be legally recognized.
And much like the rest of the nation, the White House press corps was focused on broader issues during Wednesday's press briefing. Only two reporters, one of the from an LGBT outlet, asked questions about DOMA. What dominated the briefing? You guessed it - issues that have a greater impact on most Americans: Libya and the revolution sweeping northern Africa, the possibility of a full government shutdown that would choke off benefits so many Americans depend on, and the contentious battle between unions and conservative fiscal principles that has visited Wisconsin.
In the meantime, President Barack Obama and Attorney General Eric Holder have, for the first time, lent weighty authority to the proposition that lesbians and gays should be reviewed under a higher judicial standard based on their history of sustained discrimination. Thus far, federal judges have shied away from articulating that position as had U.S. Supreme Court Justice Anthony Kennedy, who authored two landmark pro-gay opinions for the Supreme Court.
In both Lawrence v. Texas (2003), which struck down anti-sodomy laws nationwide, and Romer v. Evans (1996), which ruled against a Colorado constitutional amendment that would have prohibited any jurisdiction from enacting pro-gay protections, Justice Kennedy essentially relied only on the rational basis test to rule the measures unconstitutional. Under the rational basis standard, Kennedy could find no legitimate state interest that justified the nature of either measure. And in Romer, he specifically stated that the measure was so overreaching in the breadth of its animus toward a particular group that he needn't apply heightened scrutiny to strike it down.
While both decisions were huge wins for pro-LGBT advocates, Pizer lamented Kennedy's lack of clarity on the question of heightened scrutiny and the consequences of that ambiguity in both opinions.
"I think of them as being long on poetry and short on specifics," she said. "He gave us poetry but didn't finish the job in Lawrence. Subsequently, every case in which DOMA has been found unconstitutional the judge has said, 'I can deem this unconstitutional on the basis of rational basis and I don't need to apply heightened scrutiny.'"
It's what Stone called a disingenuous application of the rational basis standard.
"This is what the courts have done in a range of cases when they're not prepared to say heightened scrutiny applies -- they disingenuously apply rational basis review," he said.
Which has left a class of people that has been fired from their jobs due to nothing more than their individual humanity, lost their homes because they can't receive their partner's social security survivor benefits, denied the final precious moments of their partner's lives at a hospital bedside, and that continues to see the tragic desperation of their young suffering at the hands of societal indifference and even cruelty ... under-protected.
On Wednesday, the President of the United States did what so many legal scholars and LGBT advocates have been waiting for: Someone in a position of authority to speak the truth about how Constitutional protections should apply to the fundamental liberties of Americans who love differently but no less authentically than their peers. It was a courageous and commendable act that will have implications extending far beyond the reaches of DOMA.
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