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Chris Cassidy

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Obama: Down With DOMA

Posted: 02/23/11 02:28 PM ET

It's not the Defense of Marriage Act's death, but it's some long-sought change you can believe in.

At the recommendation of Attorney General Eric Holder, President Barack Obama today ordered the Justice Department to stop defending the constitutionality of DOMA's Section 3, which restricted federal marriage benefits to same-sex couples. The act, which was passed by a Republican Congress and signed into law by President Bill Clinton, has long been anathema to equality advocates. The National Journal broke news of the administration's change of heart this afternoon.

Obama's decision leaves the law on the books, but requires new counsel for parties previously represented by Justice Department attorneys in two challenges to the law still pending in federal courts. Scores of media-hungry, homophobic attorneys are presently salivating at the opening, which may present them the opportunity to defend DOMA's constitutionality before the Supreme Court in due time. New counsel's role will be limited to defending Section 3, as the Justice Department indicates that the remainder of the law should be upheld.

The president's directive is long overdue, but why now? The likelihood that attitudes towards marriage equality have changed substantially in the past two years seems slim, indicating that there may be more at work. With headlines presently monopolized by people-powered uprisings across the Middle East and America's Mid West, perhaps the administration assessed the present moment as one where big news -- like flip-flopping on the constitutionality of DOMA -- would meet scant few eyes, and thus trigger scant few(er) objections.

The announcement arrives just ahead of a March 11 deadline for the administration's position on the level of constitutional scrutiny that the law warrants. In a Justice Department press release, Holder said, "classifications based on sexual orientation should be subject to a more heightened standard of scrutiny." This is a reversal of the executive branch's more deferential view that judges should review DOMA for a rational basis -- a test which DOMA passed, according to the Justice Department. Adam Bonin offers a good primer on the legalese, for wonkier readers.

What happens next? Whoever steps in to defend the law will likely seek a delay of the March 11 deadline their brief on DOMA's constitutionality, which the court should grant. Perhaps month will then lapse until oral argument is presented in the case, and more months will lapse until a decision is announced. Then, whoever loses will seek review before the Supreme Court, where laws targeting homosexual behavior have been struck down, but the Court has refused to reveal what level of review it applied in so doing. Whether the Supreme Court would weigh in on the law's constitutionality requires four of nine justices to favor review.

Yes, the legal world is a byzantine one. But don't be discouraged: the Obama administration's move today is one more step towards the eradication of homophobic laws in our country. As principled, progressive attorneys continue challenging DOMA's constitutionality, they will now be armed with a determination by the United States government that "DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional."

 

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