Chris Geidner reports
in Metro Weekly
The Department of Justice has announced that it believes courts should apply heightened scrutiny to laws that classify people based on sexual orientation – particularly the Defense of Marriage Act. In a letter sent on Feb. 23 to Speaker John Boehner (R-Ohio), Attorney General Eric Holder writes that, because of this decision, the department will no longer defend Section 3 of DOMA, which defines ''marriage'' and ''spouse'' as referring only to opposite-sex marriages.
The issue was raised, Holder explained in a statement released along with the letter, because Section 3 of DOMA has been challenged in the [U.S. Court of Appeals for the] Second Circuit, ''which has no established or binding standard for how laws concerning sexual orientation should be treated.'' Under the Equal Protection Clause of the 14th Amendment – applied to the federal government through the Fifth Amendment – all laws that classify people into groups receive a level of scrutiny: rational basis, which is the lowest form of scrutiny; heightened scrutiny; or strict scrutiny....
The cases in question – both filed on Nov. 9, 2010 – were brought by the ACLU in New York and the Gay & Lesbian Advocates & Defenders in Connecticut. The Justice Department's deadlines for responding to the ACLU case, Windsor v. United States, and the GLAD case, Pedersen v. Office of Personnel Management, were approaching in coming weeks....
In his letter to [House Speaker John] Boehner, Holder details the four factors laid out by the U.S. Supreme Court for application of heightened scrutiny and writes that the president, given Holder's recommendation, concluded that ''[e]ach of these factors counsels in favor of being suspicious of classifications based on sexual orientation.''
This is a big deal and very good news. The letter to the Speaker is required by law in cases where the government refuses to defend a statute on grounds it is unconstitutional. DOJ's determination that it cannot defend the constitutionality of Section 3 of DOMA in these cases will carry over into other cases involving discrimination against gay people as a class, including Log Cabin's case against Don't Ask, Don't Tell. Our opponents, needless to say, will cry bloody murder.
Update: If the AG's action is "extra-constitutional," as Maggie Gallagher says in the video linked immediately above, why is there a statutory procedure in place for the administration to notify Congress of the decision not to defend a statute which it deems unconstitutional? It's lucky for us that there is more to the Constitution than is dreamt of in Maggie's philosophy.
Update 2: I just re-watched Maggie Gallagher’s fulminations on Fox, in which she and Megyn Kelly competed to see who could mischaracterize the AG’s announcement the most. They said he was refusing to enforce the law—when the announcement specifically said the administration would continue to enforce it, just not defend it. Maggie said the decision was extra-constitutional, despite the fact that AG Holder followed the procedure prescribed in the law for notifying Congress of a decision not to defend a law on constitutional grounds. (This complaint was ironic given NOM’s claims that Obama and Holder were deliberately doing a lousy job of defending DOMA; Maggie conceded this when she said the administration’s action would help in a backhanded way by opening the door for a more vigorous defense.) Maggie said the AG had called for strict scrutiny, when in fact he calls for the intermediate "heightened" scrutiny. They talked as if Congress stepping in would repudiate Obama’s desire that DOMA not be defended, when Holder’s statement explicitly refers to facilitating congressional intervention in the cases if Congress wishes. That’s a lot of falsehoods to cram into one brief interview.