Great set up piece by NYT Charlie Savage for DOMA backstory & explanation of Obama's
From a tweet by Slate's Emily Bazelon:
Quote:@emilybazelon Great set up piece: RT @charlie_savage: For backstory & explanation of Obama's switch today on Defense of Marriage Act http://nyti.ms/fSdU6P
The article was published in January.:
Quote: Suits on Same-Sex Marriage May Force Administration to Take a Stand
By CHARLIE SAVAGE
Published: January 28, 2011
WASHINGTON — President Obama has balanced on a political tightrope for two years over the Defense of Marriage Act, the contentious 1996 law barring federal recognition of same-sex marriages. Now, two new federal lawsuits threaten to snap that rope out from under him.
Mr. Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal the law. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose suits seeking to strike the law down as unconstitutional.
The two lawsuits, however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.
That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation.
“Now they are being asked what they think the law should be, and not merely how to apply the law as it exists,” said Michael Dorf, a Cornell University law professor. “There is much less room to hide for that decision.”
James Esseks, an American Civil Liberties Union lawyer helping with one case, said the new suits could be game-changing.
As a candidate, Mr. Obama backed civil unions for gay people while opposing same-sex marriage. But last month, after Congress — in the final hours before Republicans took control of the House — repealed the law barring gay men, lesbians and bisexuals from serving openly in the military, he told The Advocate, a magazine that focuses on gay issues, that his views on marriage rights “are evolving.”
“I have a whole bunch of really smart lawyers who are looking at a whole range of options,” Mr. Obama said, referring to finding a way to end the Defense of Marriage Act. “I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible.”
Since 2003, when the Supreme Court struck down laws criminalizing gay sex, the legal landscape for same-sex marriage has shifted. Eight states now grant marriage licenses to same-sex couples or recognize such marriages if performed elsewhere. But under the Defense of Marriage Act, the federal government cannot recognize those relationships.
That has raised a crucial question: Is it constitutional for the federal government to grant certain benefits — like health insurance for spouses of federal workers, or an exemption to estate taxes for surviving spouses — to some people who are legally married under their state’s laws, but not to others, based on their sexual orientation?
The Constitution declares that everyone has a right to equal protection by the law. But many laws treat some people differently from others. Courts uphold such policies as constitutional if they can pass a test showing that the discrimination is not invidious.
A law singling out an ordinary class — like owners of property in a district with special tax rates — gets an easy test. It is presumed valid, and a challenge is dismissed unless a plaintiff proves that the law advances no conceivable rational state interest.
But a law focusing on a class that has often been subjected to unfair discrimination — like a racial group — gets a hard test. It is presumed invalid and struck down unless the government proves that officials’ purpose in adopting the law advances a compelling interest.
Quote:U.S., in Shift, Sees Marriage Act as Violation of Gay Rights
By CHARLIE SAVAGE and SHERYL GAY STOLBERG
Published: February 23, 2011
WASHINGTON — President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.
Attorney General Eric H. Holder Jr. sent a letter to Congress on Wednesday saying that the Justice Department will now take the position in court that the act should be struck down as a violation of same-sex couples’ rights to equal protection under the law.
“The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law,” a crucial provision of the act is unconstitutional, Mr. Holder wrote.
The government’s new position could have far-reaching implications for the rights of gays and lesbians that extend beyond the Defense of Marriage Act, legal scholars said. Gay rights advocates hailed it as a breakthrough.
“It’s a monumentally important decision,” said Tobias B. Wolff, a law professor at the University of Pennsylvania who advised the Obama campaign on gay rights issues.
“The Justice Department and the president have taken the position on behalf of the United States government that discrimination against gay and lesbian people in all cases is presumptively unconstitutional,” he said. “It’s the first time the United States government has ever embraced that position, and if the courts agree, it will help to eradicate all of the various forms of discrimination that gay and lesbian people suffer around the country.”
But the new lawsuits were filed in districts covered by the appeals court in New York. That court has no precedent establishing which legal test judges should use when evaluating claims that a federal law violates gay people’s rights.
That vacuum meant that the administration’s legal team had to perform its own analysis of whether gay people were entitled to the protection of a test known as “heightened scrutiny.” Under that test, it is much easier to challenge laws that unequally affect a group, because the test presumes that such laws are unconstitutional, and they may be upheld only if the lawmakers’ purpose in enacting them served a compelling governmental interest.
In his letter, Mr. Holder said the administration legal team had decided that gay people merited the protection of the “heightened scrutiny” test, and that under that standard, the Defense of Marriage Act was impossible to keep defending as constitutional.