President Obama recently directed the Justice Department to stop defending cases related to the Defense of Marriage Act, or DOMA, against lawsuits that challenge its constitutionality. Sara R. Benson, an expert on sexual orientation and the law, spoke about the decision and what's next for the controversial law with News Bureau business and law editor Phil Ciciora.
What does this move by President Obama and the Justice Department mean, exactly?
President Obama directed the Department of Justice to stop defending DOMA in current court challenges because he found the statute to be unconstitutional.
Obama, the former constitutional law scholar, announced that he feels that discrimination based on sexual orientation should be analyzed under heightened scrutiny - a standard typically applied to equal protection challenges from distinctions based on sex - and that DOMA fails to meet that heightened level of scrutiny. The government will still, however, enforce DOMA, so Congress now has the opportunity to intervene and defend the Act if it so chooses. In fact, House Speaker John Boehner has already said that he will convene a meeting of the Bipartisan Legal Advisory Group of the House to defend the law.
Where do you foresee this legal roller coaster heading?
Well, the law could be repealed, although that's probably unlikely given the current political landscape, or the cases could end up in the Supreme Court if they are appealed. There is no way to accurately predict how the Supreme Court would rule, but given the current political makeup of the court, this may not be the ideal time (for those favoring repeal) for this issue to reach the high court.
Gay rights advocates have been growing increasingly impatient with President Obama's inaction on what they see as the key civil rights issue of this era. After the "shellacking" of the mid-term elections, do you view this move as more of a political ploy by the Obama administration to appeal to a key Democratic constituency?
I don't see this as a political ploy because Obama is a constitutional scholar by training and I think he gave the issue quite a bit of thought.
Originally, the Department of Justice supported DOMA not because of independent reasoning under the constitution, but because of the location of the lawsuits. The earlier suits were based in courts where legal precedent was clear; according to the first and ninth circuit courts, sexual orientation does not constitute a protected class, and, hence, the government was basically just following the letter of the law.
Now, in the second circuit, court challenges are pending where the door is wide open for the court to rule on whether sexual orientation discrimination merits heightened scrutiny.
So the timing was right for Obama to use his knowledge of the Constitution to analyze the issue. It may work to his favor in some political circles, but I don't believe he took this stand solely for political gain.
Are there any similarities between the fight over DOMA and California's Proposition 8, the anti-gay marriage initiative passed by voters in 2008?
There are some similarities between the two, as they both involve questions relating to what standard of review should be applied under equal protection analysis to discrimination based on sexual orientation.
In the Prop 8 Litigation and the DOMA challenges, the issue centers on whether it is proper to exclude same sex couples from marriage. And, wrapped up within that issue, is whether the government - or, in the case of Prop 8, the people voting for the constitutional amendment - must satisfy heightened review in order to classify based on sexual orientation for marriage. So there are some similar legal principles at issue in both areas of litigation.
What should Congress do - repeal the statute, or wait for DOMA to be voided by the courts?
I think the answer to this question depends on two things: one's political views, and which way the courts are leaning.
In my view, DOMA should be removed one way or another. Certainly, it would be more useful to lesbian, gay, bisexual and transgender rights generally if the Supreme Court had occasion to rule that sexual orientation classifications under equal protection merit heightened review. This type of ruling would have a large impact on the legal landscape in this country.
However, a ruling in the opposite direction could also have a large impact. I'm not certain how the case would turn out if it goes to the Supreme Court. So it might be preferable for Congress to repeal DOMA instead of having it go to the Supreme Court, especially if a potentially negative ruling is the suspected outcome.