Friday, February 25, 2011

Defeating DOMA and Moving Forward

Click hereto read entire blog post by James Esseks of the National ACLU’s LGBT Project.

There's lots to celebrate about the Justice Department's statement that it will no longer defend the so-called "Defense of Marriage Act" (DOMA) in court. That statement makes a few things clear:

1. The Obama administration agrees with what we've been saying for years – that when the government treats gay people differently than straight people, it's got to have a very good reason for the discrimination (this is what courts call applying "heightened scrutiny").
2. The administration agrees that it doesn't have a good reason for respecting the marriages of heterosexual couples while pretending that married same-sex couples aren't actually married (which is what DOMA does, after all).
3. Since the administration doesn't have a good reason for the discrimination, it's going to stop defending DOMA, both in our case and in others. This is a video about our case challenging DOMA that we filed along with Paul, Weiss, Rifkind, Wharton & Garrison LLP.)

Up until now, the federal government has taken the position that discrimination against lesbians and gay men is almost always OK, that it's presumed to be constitutional. With yesterday's announcement, the government has recognized that under the proper constitutional analysis, it needs a good reason to treat gay people differently from everyone else.

The shift is quite simply amazing. Amazing to have a government that decides an important issue of constitutional law based on principle rather than politics. Amazing to see a government switch gears when faced with a case that requires it to address the legal issues more...