Thursday, February 24, 2011
DOMA and beyond . . .
I cannot quite tell what the implications will be of the Obama administration's decision not to defend the Defense of Marriage Act in court. My understanding is that the administration didn't simply decide that DOMA is a bad law so it shouldn't be defended; the administration decided that discrimination against gays and lesbians should be subject to a heightened standard of scrutiny (rather than rational basis) under the Constitution, and that the traditional definition of marriage qualifies as such discrimination. It remains to be seen, though, whether this decision by the administration is primarily one of inaction (not going to defend a discriminatory law) or action (advocating for a heightened standard of scrutiny in challenging discriminatory laws). If the latter course is the strategy, that has some pretty significant implications far beyond DOMA. Does anyone have a clearer understanding of (or at least some speculation regarding) the way forward from here? Has this move increased the likelihood that state laws banning same-sex marriage will be found unconstitutional?
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/02/doma-and-beyond-.html
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Hi, Rob -- I'm just learning about and thinking through this too. I guess (but am not sure) that the technical answer to your last question is no, not necessarily. The opinion of the federal executive on these matters has no authority. But the practical consequence of the decision may be something like a chain reaction: federal courts more likely to hold DOMA unconstitutional, Supreme Court more likely to follow suit, state courts bound by Supreme Court as to a ban. It might also be that because there was fairly heated "animus" in evidence in the DOMA legislation, a comparable state ban evincing no, or less, such animus would get a different result. But that seems a stretch to me.
One interesting feature of the President's decision is that he has voiced opposition to same sex marriage in the past, and there seems to be at least some tension between that view and his current view of the constitutional standard. But he has also said that his views on gay marraige are "evolving" so perhaps there is no tension any longer.
Another interesting issue in some of the con law listservs I've seen is the distinction between a refusal to enforce and a refusal to defend. The latter is rightly (in my view) seen as less extreme than the former, but it remains to be seen what the executive will do here.