In a bold, principled, and unexpected move, the administration — led by Obama himself — has determined that the gay-marriage banning Defense of Marriage Act “violates the equal protection component of the Fifth Amendment” and will no longer defend it in court.
In a letter to House speaker John Boehner, Attorney General Eric Holder invoked “recent evolutions in legislation” — specifically the repeal of Don’t Ask Don’t Tell — to buttress the administration’s reversal. More provocatively, Holder writes that “the legislative record underlying DOMA’s passage… contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships — precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”
The move is a true departure from DOJ’s regular course of business; it routinely defends laws that it disagrees with. As Holder notes: “the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” Holder and the president are saying, in effect, that there’s no reasonable defense of this discriminatory law.
While the decision not to defend DOMA in court won’t, by itself overturn the law, this is still a big fucking deal. Obama is directly challenging the Supreme Court to build on the recent expansion of civil rights for gay Americans brought through cases like Lawrence v. Texas, which outlawed state bans on sodomy. More surprising, a president infamous for his caution and calculation has cannonballed right into the culture war.
“I commend the President on his bold leadership,” said Rich Socarides, president of the gay-rights group Equality Matters. “It means that the discriminatory and harmful Defense of Marriage Act is on its last legs.”