Finally, A Fierce Advocate

For most of his term thus far, President Barack Obama has been derided by LGBT advocates primarily because of the Justice Department’s defense of Don’t Ask Don’t Tell and The Defense of Marriage Act in court.  The Justice Department has made some serious missteps along the way, particularly its first attempts to defend DOMA, which recycled every anti-gay canard in the book.  It was a very disappointing start from someone who called himself a fierce advocate for the LGBT community.

Although I too have been very disappointed at times, the truth is that even prior to the DADT repeal a few months ago, Obama had done a tremendous amount for the LGBT community, far more than any of his predecessors–in fact, far more than all of his predecessors combined.  However, before the repeal of DADT, everything victory had been administrative, which means that if a homophobic bigot such as Mike Huckabee were to becomes President, all of the Obama Administration’s good work could be erased almost immediately.  It is different with legislation; because getting Congress to do anything takes a tremendous amount of effort, repealing prior legislation is almost impossible (unless the courts do it–more on that below.)  It’s why DADT will stay repealed despite the rumblings of some idiotic freshman Republican Representatives.  It’s also why it is so hard to repeal DOMA legislatively, although God love Dianne Feinstein for trying.

LGBT advocates have always known that the only way to overturn DOMA is judicially.  DOMA is blatantly unconstitutional for at least two very good reasons: (1) the federal government is supposed to recognize state marriages; and (2) state governments have to recognize marriages performed in other states.  Yet DOMA prohibits the federal government from recognizing same-sex marriages and allows states the option of not recognizing them.  (Also, it is a law that blatantly and unconstitutionally discriminates against a class of people.)

Now, it is true that the federal constitution does not explicitly mention marriage, which is why DOMA was not struck down immediately.  However, marriage has always been left to the states.  Marriage and probate law are the two major areas that the federal government steers clear of.  It is unthinkable that say the state of Wyoming, let alone the federal government, would refuse to recognize a marriage from Colorado.

When DOMA passed, there was no such thing as same-sex marriage in the United States.  Only the Hawaiian state Supreme Court had found a state constitutional right to marriage for same-sex couples and that was quickly overturned.  Nevertheless, the writing was on the wall, and Congress overstepped its bounds to make sure that if there were any more Hawaiis, then neither the federal government nor the other states would be bound by such formalities as the constitution.

So why does DOMA still exist?  No one has challenged it yet.  Given the makeup of the Supreme Court in 1996 (when DOMA passed), LGBT advocates were justifiably afraid that a majority of the Justices would create horrendous precedent for same-sex couples.  Sodomy laws were still on the books in a few states, and Supreme Court jurisprudence had by and large been very unfavorable to the LGBT community.  Although that had started to change with Romer v. Evans, challenging DOMA would have been akin to civil rights litigation suicide.

In the late 1990’s things started to change.  Vermont led the way with its civil unions law.  Then came the double whammy in 2003 of Lawrence v. Texas and the Massachusetts Supreme Judicial Court decision which required the state to offer marriage to same-sex couples.  More states enacted civil union and same sex marriage laws.  DADT was overturned by Congress.  Despite the setbacks, and there have been many, the gains have been monumental.  Lawrence, as flawed as the decision is, cast a very long shadow, and despite (or perhaps because of) its vagueness, lower courts have been trended to find a more expansive holding with regard to gays and lesbians.  This meant that anti-gay laws cannot stand.  First and foremost among them is DOMA.

So getting back to Obama, when the Justice Department defended DOMA, LGBT advocates were crushed because throughout his presidential campaign he heavily implied that he thought DOMA was unconstitutional.  The Justice Department learned from its initial tone-deaf missteps, and its attempts at defending DOMA were half-hearted at best.  Nevertheless, the law was still being defended by the Obama Administration.*

Until today.

The President has directed the Justice Department to argue that DOMA is unconstitutional.  That means that the federal government’s position whenever DOMA is challenged is that the law should be struck down (at least in districts with no precedent.)  Although it is not unique for the Executive Branch to argue that standing law is unconstitutional, it is exceedingly rare–almost unheard of.

Moreover, and to me this is the even bigger deal, the Justice Department’s official position is that sexual orientation is a protected class and merits heightened scrutiny.  As I have discussed before, reviewing a law with heightened scrutiny means that the law is far more likely to be struck down.  Presumably this would mean DOMA and its progeny would fall.

But here is the problem–although the Justice Department’s official position is that sexual orientation is a protected class deserving of heightened scrutiny, the Executive Branch does not make that determination, the courts do–specifically the Supreme Court.  If the Supreme Court holds that sexual orientation is not a protected class, then it is not until Congress or the Constitution change (or the Supreme Court personnel does.)  Furthermore, a new Administration may change Justice Department policy.  Additionally, DOMA is not left undefended.  Members of Congress are permitted to defend it now that the Justice Department has declined.

So does this mean that the Administration’s position is worthless?  Absolutely not.  In fact, this may be a blessing for the courts.  Courts hate to be out in front of public opinion because of the political fallout.  It is very rare for a court to lead the way–that’s why there was only one Warren Court (the era in the 1950’s and 1960’s when the Supreme Court dramatically altered civil and criminal rights law.)  Because the federal government’s official position is that DOMA is unconstitutional, the courts may be more willing than before to strike DOMA down.  Although that might not make a difference in front of the Supreme Court, it also just might.  When the case comes before the Supreme Court, the Court will ask the Justice Department for its official position.  An attorney from the Solicitor General’s office (perhaps even the Solicitor General) may well argue for ten minutes or so before the Court and tell the Justices that DOMA is unconstitutional and homosexuals deserve stronger protection under the law (watch for Justice Scalia’s head to explode if that happens.)

President Obama made a very strong point today–his administration will no longer defend any laws that are rooted in anti-gay animus.  Dahlia Lithwick does a great job summing this all up if my analysis is not enough. Read her take anyway.  She’s always worth it.

So assuming the Supreme Court follows the Justice Department, what happens next?  Well, it is dangerous to speculate, but there probably will be two different courses of action.  The first is to get rid of the entirety of DOMA.  Remember, the current lawsuits only challenge one part of the law.  There is still the matter of the states refusing to recognize other states’ lawful marriages.  Assuming that the Supreme Court does indeed grant heightened scrutiny for sexual orientation, then there will be a state-by-state law campaign to get rid of all laws and state constitutional amendments that outlaw same-sex marriage (and adoption).

The second course of action will be to go after federal government laws that discriminate against same-sex couples.  These are laws you may not immediately think of, but are still very important: tax laws, particularly those dealing with marriage and inheritance, immigration laws (letting a same-sex spouse stay in the country as one would with an opposite-sex spouse), government worker benefits, particularly health care.  These are no small potatoes.

So the final question is why now?  There was really no political gain, and the announcement came out of the blue.  When DADT was repealed, I thought that the Administration was going to pack up, say that it kept its major promise to the LGBT community, and would worry about DOMA after reelection.  I have to say that I am shocked.  It really feels like the LGBT community has, finally, the staunch ally that we were promised.  The arc of the moral universe may have bent a little more today toward justice.


* There are currently two cases pending before the Second Circuit Court of Appeals that challenge that section of DOMA that defines marriage for federal government purposes as only one man and one woman.  The Second Circuit hears cases from Vermont and Connecticut, both of which legalized same-sex marriage.


3 responses to “Finally, A Fierce Advocate

  1. I think it’s too early to call Obama “a fierce advocate.” Perhaps “a lukewarm ally” is a more measured assessment. He does not lead; he follows.

  2. Pingback: 9th Circuit Declares Prop 8 Unconstitutional | tracingthetree

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