Wednesday, February 23, 2011

A Victory in the Culture Wars

[T]he President has concluded that . . . classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute.  -- Attorney General Eric Holder.
Bill Clinton did many disgraceful things while President having nothing to do with interns.  In 1996 he signed into law the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages.  The Obama Administration has finally determined that the law discriminates against sexual orientation and is unconstitutional.  It is about time.

Laws that are challenged under the Equal Protection Clause are analyzed under various standards depending on the class of people against whom the law allegedly discriminates.  The highest standard, known as strict scrutiny, applies to statutes that discriminate on the basis of  race.  When strict scrutiny is applied, the law is presumed unconstitutional and can only be upheld if there is a compelling government interest.  At the other end of the spectrum is the rational basis test, under which laws are presumed constitutional and will be upheld as long as the law serves some legitimate government interest.  There are also intermediate levels of scrutiny.

The Obama Administration previously defended DOMA in court, arguing that it was constitutional under the rational basis test.  What the Justice Department did today was acknowledge that laws that impact sexual orientation must pass a "heightened standard of scrutiny," somewhere between strict scrutiny and rational basis.  Because Section 3 of the Defense of Marriage Act, which defines marriage for federal purposes as only between a man and a woman, cannot survive analysis under a higher standard than rational basis, the Attorney General announced it will no longer defend the constitutionality of the statute.

It is important to remember that DOMA is still the law of the land until Congress repeals it or it is found unconstitutional in the courts.  But the Administration's recognition that this law -- and others -- which discriminate on the basis of sexual orientation are unconstitutional is an enormously positive step.

Republican leader John Boehner criticized President Obama for "stir[ring] up a controversial issue that sharply divides the nation" when he should be focusing on jobs.  This must mean the GOP is not wasting its time with wedge issues but is responsibly seeking solutions to the unemployment crisis.  Well, not exactly.  The Republican Party is doing little but devoting their efforts to repealing health care reform, undermining abortion rights, and defunding Planned Parenthood and NPR.  Despite the hypocritical rhetoric it is clear that they want to keep fighting the culture wars.  OK, let's fight.  As Kevin Drum states, "Blacks, Hispanics, gays, women, the disabled and millions of others have benefited tremendously from the culture wars, and I'm happy to see it continue until there's no more war to fight."


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