By Jason Hines – Today Attorney General Eric Holder and the Obama Administration announced that the Justice Department will no longer attempt to defend Section 3  of the Defense of Marriage Act (DOMA) (which defines “marriage” as between one man and one woman and “spouse” as a member of the opposite sex) from challenges in states that recognize gay marriage. This is a decided victory for those who support the cause of civil same-sex marriage. Previously, the federal government has defended DOMA, so this seeming reversal of position came as somewhat of a surprise. It is important at this juncture to wade through the legal arguments and determine the circumstances and legal reasons that led to the Executive Branch’s current position and what this means going forward.

Currently there are two cases in the 2nd Circuit which are challenging the constitutionality of Section 3 of DOMA. One case is from New York (Windsor v. U.S.) and the other is from Connecticut (Pederson v. OPM). It is important to note that gay marriage is legal in Connecticut and is recognized, but not performed, in New York. The DOJ has defended DOMA in jurisdictions where the courts have decided that government only needs to have a rational basis justification in order to enact laws that discriminate against homosexuals. In short, a rational basis justification means that the government only needs to formulate a plausibly reasonable justification for a particular. Most laws are held constitutional under this standard. These cases are different, however, because the 2nd Circuit has made no decision on whether homosexuals are a protected group, which would require some heightened scrutiny on the part of the Court in judging whether discriminatory laws are permissible against gays. These cases would require the DOJ to formulate their own beliefs about what standard that should be used when it is found that a law discriminates against homosexuals, whether to use rational basis, as some jurisdictions have, or to use heightened scrutiny. Heightened scrutiny has been defined by the Court as “a tenable justification describ[ing] actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.  Based on its analysis, the DOJ believes that laws that discriminate against homosexuals should receive heightened scrutiny.

The DOJ came to this conclusion after its own analysis of the question, based on the standard for heightened scrutiny provided by the Supreme Court. While the Supreme Court has made no definitively ruling on what level of scrutiny should be accorded laws pertaining to homosexuals, the DOJ believes that heightened scrutiny is the right answer. There are four questions that must be considered for heightened scrutiny to apply: (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) (quoted from Attorney General Eric Holder’s letter to Speaker of the House John Boehner). The DOJ believes that homosexuals fit all these criteria. First, homosexuals certainly have suffered a history of discrimination. Second, the DOJ admits that there are no visible characteristics, but it cites social science research that supports the finding that homosexuality is immutable and cites to the recent debate on Don’t Ask Don’t Tell to support the proposition that the Executive Branch believes that people should not have to hide their sexual orientation. Third, the Executive Branch believes that homosexuals are more or less politically powerless despite some of the gains that gay rights activists have made lately. As a comparable example, the DOJ cites to the fact that women were deemed politically powerless after the passing of the 19th Amendment and Title VII. Finally, the government supports the proposition that being gay does inhibit anyone’s ability to contribute to society.

In light of these factors, the DOJ feels that they can no longer defend DOMA as it applies to the states that legally recognize gay marriage. The DOJ will continue to defend DOMA in cases that apply to the Federal government. It is clear that the Obama administration is construing this as a federalism issue, where the states have the right to determine what a marriage is without the interference of the federal government. However, this is a victory for gay rights activists, as the Executive Branch has essentially said that it will stay out of the fray at the state level for now. Despite all this, there are still no definitive answers to the question of whether homosexuals have a right to civil secular marriage (or even at what level of scrutiny laws against them should be judged). That answer will probably have to wait until the Supreme Court decides the matter in the future.

Jason Hines is an attorney and doctoral candidate at the J.M. Dawson Institute of Church-State Studies at Baylor University.


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