Monday, February 28, 2011

Time for some good news

Brace yourself: I'm about to say something nice about the Obama administration.

There has been a fair amount of discussion about the White House's decision to stop defending the constitutionality of the Defense of Marriage Act, or DOMA (which I keep wanting to pronounce as "Doom! Ah!"). Much of what has come from the right has been predictably inane, such as the execrable Newt Gingrich, the nation's most perfectly-named politician, calling it an impeachable offense and the always-good-for-a-laugh Alan Keyes comparing same-sex marriage to owning slaves on a plantation. (I keep expecting Keyes to bust out laughing and say "I just can't hold it in any more! Haven't you people ever read Jonathan Swift? How obvious do I have to be?")

Commentary from the left has also been predictable in its own way, justly praising the decision while scolding PHC* for how long it took to get to this point. A number on both sides referred to a "reversal" in the administration's position.

But truth be told, I'm not sure it was a true reversal, and here's why: It's generally held to be the obligation of the DOJ to defend in court the constitutionality of federal laws. This is because it's felt unwise to essentially give the Executive Branch a double veto, one when the bill comes out of Congress and a second by refusing to defend the law against a legal challenge.

In this case, the DOJ's statement said that
the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. ...

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.
Put another way, in those previous cases the underlying question of can it be constitutional to single out people based on sexual orientation had already been answered yes. However, now DOMA has come up in a circuit where that question has not been answered and so the constitutionality of DOMA is a relevant issue. The administration's response is to defend that more rigorous standard regarding discrimination to which the statement referred, under which DOMA could well be held unconstitutional.

What this makes me suspect is that the White House was defending DOMA only to the extent it felt obligated to and it grabbed the first chance to offer what I suppose could be called a truly minimalist defense, that of "DOMA is constitutional if it can meet this strict standard, which we say it can't." Which in turn suggests that this is not a "reversal" but a case of having waited for an opportunity and then grabbing it when it arose.

I've said enough times before but it bears repeating: The day of justice, the day when the sex of the person you love will be, at least legally and eventually socially, no more relevant than their race or their religion, will come. Want a bit more proof? How about the fact that earlier this week
the Maryland Senate voted 25-21 to pass SB 116, the Civil Marriage Protection Act, legislation that would end the exclusion of gay and lesbian couples from marriage in Maryland.
The bill now goes to The House of Delegates; thanks to Rumproast for the link.

The day is coming. And while all the screeching and scraping of the bigots and bozos may delay that day, they will not prevent it.

*PHC = President Hopey-Changey

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