The Obama administration’s decision to decline to defend the Defense of Marriage Act (DOMA) in current challenges to the act’s constitutionality has had a palpable emotional impact on the public and the folks on the front lines of the ongoing struggle over same-sex marriage equality. But, unlike the famous 1930s “switch in time” in which a newly emergent Supreme Court majority began upholding key elements of the New Deal, this announcement from the office of the attorney general has no specific legal effect. The attorney general’s order notwithstanding, DOMA will have its day in court.
Nonetheless significant is the rather explicit insistence on the part of attorney general that marital discrimination involving gays and lesbians is deserving of heightened scrutiny under the U.S. Constitution’s requirement of equal protection. The matter of scrutiny is at the heart of not only the current DOMA litigation, but also the Proposition 8 case from California currently before the federal appellate court. Both DOMA and state same-sex marriage bans are heading down the litigation track at the same time. And the administration’s declaration reflects at the very least a switching of emphasis, if not of sides.
Attorney General Eric Holder’s statement is carefully worded. The key explanation for why the administration will no longer defend the law is that this law falls short when measured against a standard of “heightened” scrutiny. Yet, neither the Supreme Court of the United States nor any federal appellate court has held that discrimination against gays and lesbians is subject to this heightened scrutiny. The administration’s justification of its position, therefore, rests on the premise that this higher level of scrutiny is warranted — a legal judgment the attorney general makes clear that he and the President Obama have reached independently of any judicial result or reasoning — and reaches the conclusion that, under this statute, DOMA fails.
Whether this premise is valid will ultimately be a judgment of the federal courts, perhaps lastly the Supreme Court. But the president is clearly warranted in making his own constitutional interpretation and in declining to defend the law in court on the basis of this interpretation. Somewhat at odds with this deliberate judgment, however, is his insistence that the Department of Justice will continue to enforce DOMA until either repealed or invalidated by judicial order. While the president has the constitutional duty to ensure that the laws are faithfully executed, his conclusion that this law is inconsistent with the nation’s fundamental law suggests that its ongoing enforcement, to the detriment of gays and lesbians seeking recognition of legal status as married couples in the handle of states that currently permit same-sex marriages, is problematic.
All that said, the principal impact of the Obama administration’s remarkable declaration is surely political. The statement may well forecast the future intention of Obama to support, fully and fulsomely, same-sex marriage. And, perhaps equally significantly, it may give political cover to federal, state and local officials — not excluding judges — whose ambivalence about same-sex marriage is borne more of strategic political calculations, rather than personal commitments or interpretations of the state and federal constitutions. Restrictions on same-sex marriage cannot be removed by a presidential stroke of the pen. Rather, movement of cutting back on, or abolishing entirely, these restrictions will require a complex admixture of federal legislation, state constitutional amendment, judicial decisions and grassroots political pressure. The president’s statement is profoundly important as a measured intervention in an ongoing political struggle. The immediate legal consequences are largely secondary.
Daniel B. Rodriguez is the fellow in law and urban economics at the Baker Institute. He is also the Minerva House Drysdale Regents Chair in Law at The University of Texas at Austin. Rodriguez is currently serving as the Stephen & Barbara Friedman Visiting Professor of Law at Columbia University Law School in New York City.