Today’s announcement that President Barack Obama’s Justice Department will stop defending the constitutionality of the Defense of Marriage Act (DOMA) seemed to come out of nowhere — unless you think the administration was emboldened by the election of alum Rahm Emanuel as mayor of Chicago.
Gay activists have hoped for a long time that Barack Obama would do just this — it’s an easy out for the president. Gay activists have been urging Obama to take the path of least resistance by allowing discriminatory laws to be declared unconstitutional by the courts and then not appealing or defending them. It’s exactly what Lt. Dan Choi pleaded for when federal judge Virginia Walker ruled that Don’t Ask, Don’t Tell was unconstitutional: “Don’t do anything, Obama! Just keep on doing what you’re doing, which is jack shit. Don’t appeal the decision. Don’t add one more thing to your plate, your heavy-ass plate.”
The Obama Administration’s new ploy, explained in a letter to Congress by Attorney General Eric Holder, is to take the position in court that (as the Times paraphrases it) DOMA “should be struck down as a violation of same-sex couples’ right to equal protection under the law.” In other words, the administration now says that this part of the law is unconstitutional.
Whether gay marriage would fly before the Supreme Court is one thing, but those cases are having a hard time working their way up to the high court, especially when issues of “standing” occur. Perhaps Obama wants to help keep them from getting there, taking a page from former California Governor Arnold Schwazenegger and former Attorney General and (current California) Governor Jerry Brown.
Their decision not to appeal after a federal judge ruled that the anti-gay-marriage Prop 8 amendment was unconsitutional has thrown a monkey wrench into the works, because there’s a question whether opponents of gay marriage have standing to even appeal such cases.
Right now, the Prop 8 case is back in front of the California Supreme Court, which will have to determine if, when the government losers in Perry v. Schwarzenegger chose not to appeal, others can in their place. If the court says they can’t, the ruling of the law’s unconstitutionality will stand, and gay marriages will presumably resume in California.
Similarly, if DOMA were to be struck down in federal court and the Obama administration declined to appeal, others might not be able to appeal. That could end those cases in their tracks.
Today’s letter from Attorney General Eric Holder was addressed to Speaker John Boehner. It is highly unlikely the Republican-controlled House will take the administration’s suggestion that it change a potentially unconstitutional law. For once, we imagine, they will defer to “activist judges” to rule on DOMA’s constitutionality before getting involved.
Still, it’s interesting to observe Obama’s latest evolution on marriage, which seems to be coming full circle. In December, Obama admitted to the Advocate‘s Kerry Eleveld that when it comes to gay marriage, “like a lot of people, I’m wrestling with this. My attitudes are evolving on this.”
While running for President, Obama said he did not support gay marriage but did support legal equality for gay couples. But in 1996, while running for Illinois State Senate, he filled out a survey for the Windy City Times indicating support for full gay marriage equality. He’s never quite gotten back to this place, and as recently as January, the White House Press Secretary did everything he could to duck questions about this survey.