Attorney General Eric Holder has just issued a statement announcing that the Department of Justice will no longer defend the constitutionality of the Defense of Marriage Act. President Obama has come under criticism from gay groups for saying he supports a repeal of DOMA, the federal policy that restricts marriage to one man and one woman signed into law by Bill Clinton in 1996, while still instructing the DOJ to defend it in court. In the two current cases against DOMA, Pedersen v. OPM and Windsor v. United States, the DOJ will now remain participatory but will not defend the constitutionality of DOMA. (Interested members of Congress still may defend it if they so choose.)

The rationale behind the shift is that one case has reached the Second Circuit, which has established no standard of review for how sexual orientation should be categorized by the courts. (For a quick refresher on scrutiny, look back at this old Prop 8 ruling post.) Up until now the DOJ has been operating under the understanding that laws pertaining to gays should only be granted the most basic level of review — that they must be rationally related to a legitimate government purpose. But now that the case has reached the Second Circuit, Holder says that is subject to change. Since Obama believes that gays suffer continued discrimination, they deserve a higher level of protection when it comes to enacting laws that apply only to them. Obama, a lawyer himself, and Holder both believe that the section of DOMA that bars legally married gay couples from federal recognition does not meet a higher level of scrutiny. It is not substantially related to an important government interest (at least intermediate scrutiny). Therefore, in their opinion, the ban is unconstitutional.

This is big news. The level of scrutiny given to laws applying to gay people has so far been inconsistent in court rulings. The Obama administration is taking a stand to defend gays against discrimination by insisting that they be given a higher level of consideration — like women or racial minorities. Plus, after the repeal of Don’t Ask, Don’t Tell, it checks off one box in the ever-shortening list of complaints gay supporters have against Obama.

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act [Justice.gov]