Emboldened by the pending repeal of the Don't Ask Don't Tell law, President Barack Obama, and his top legal official, have concluded that in two pending cases, the Administration will not defend a federal law that defines marriage as being the union between one man and one woman.
The issues brought up by the Obama administration will likely be similar to what the U.S. Supreme Court would address if it ever takes on a case involving sexual orientation as a class.
The Supreme Court has recognized race, religion, or national origin as having a suspect classification which requires much closer scrutiny from the courts with regard to discrimination.
The key part of the Defense of Marriage Act, passed in 1996, is Section 3, which says that the word 'marriage' means only a legal union between one man and one woman as husband and wife and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
To properly defend the law in two pending cases, U.S. Attorney General Eric Holder, who is advising President Obama, said a significantly higher level of scrutiny is needed.
The repeal of the Don't Ask, Don't Tell law late last year means that the U.S. military officials can no longer dismiss service members for being gay or lesbian. Repeal of that law was cited several by Holder times as a reason for the need for higher level of scrutiny for sexual orientation as a class.
I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same sex-couples legally married under state law, Section 3 of DOMA is unconstitutional, wrote Holder in a letter on Wednesday to House of Representatives Speaker John Boehner.
A New Situation
While the administration has previously defended Section 3, two cases in the Second Circuit Court of Appeals presented a new situation.
Cases in other jurisdictions, outside the Second Circuit, have held that classifications based on sexual orientation are subject to a less stringent level of scrutiny, known as rational basis review.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue, Holder said.
Many of the more recent decisions have relied on the fact that the supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Holder said.
Holder outlined the four considerations that courts are likely to take into account when considering a higher level of scrutiny for a classification and why the Obama administration believes sexual orientation deserves it.