Decision Time: Obama Administration Faces New Legal Question in Same-Sex Marriage Lawsuits
February 17, 2011 by HRC staff
Post submitted by Michael Cole-Schwartz, Former HRC Director of Communications
Lawsuits to overturn the federal government’s ban on recognition of legal same-sex marriages (the so-called “Defense of Marriage Act” or DOMA) have been in the courts for years.
But in the next few weeks the Administration will face a critical legal question in two new cases that it has not yet had to face: what level of judicial review is appropriate for claims based on sexual orientation? These cases brought by the ACLU and GLAD are in the Second Circuit which doesn’t have existing precedent for this question. Essentially, it comes down to if courts will take a harder look at discrimination based on sexual orientation, as they do those involving race and gender. For more on the issue, the New York Times has a background story. HRC has prepared a helpful memo on DOMA and scrutiny (pdf) to sort through these legal issues and the choices faced by the administration as it defends DOMA in court.
We believe the administration does NOT have a “duty to defend” this blatantly unconstitutional law, as they argue that they do even while calling it discriminatory and on-record as supportive of repeal. Nevertheless, how the administration approaches this legal question will have ramifications for marriage lawsuits in the future as well as a host of other LGBT rights issues including protections from discrimination. As the memo states: “It would be devastating, as both a matter of equal protection jurisprudence as well as a political statement, to suggest that laws discriminating against gays and lesbians are presumptively constitutional." The next key filing date in the DOMA cases is March 11, so this issue will be heating up rapidly.
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