There’s no two ways about it — this is huge news:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.
The administration has essentially sided with the decade-long argument of LGBT impact litigators that laws that affect gay and straight people differently have to be strongly justified. This is new — and a big deal. This really will affect people’s lives. I’m looking forward to Lambda Legal’s take as well as other experts in this area to see both the short-term and long-term implications moving forward.
A few quick notes on the politics. First, the President did not have to do this. Not now, and not ever. In fact, there were prominent gay administration defenders who have consistently argued that the President simply could not do this. They might want to look in the mirror today and do a little soul-searching.
Second, the agenda-setting power of the LGBT rights movement has gone from zero to shockingly high in just a few short years. After successfully pushing the administration to move on DADT before the new Congress was seated, we now get this announcement right before the presidential campaign really heats up. For all the criticism launched at the elite gay insiders, I think we have to conclude they’re at least playing the inside game well.
Relatedly, the intra-Democratic Party interest group politics of this is fascinating. I know many will disagree, but I believe this action is among the most progressive and, frankly, ballsy thing President Obama has done since deciding to run for President. There can be no doubt that he wants to be on the right side of history on LGBT issues and is willing to spend capital to get there. But I can’t help but notice that this announcement steps on the news and excitement coming out of the labor grassroots in Wisconsin at an absolutely crucial juncture. When you compare the political capital spent on DADT & DOMA versus, say, EFCA, you begin to realize that a fundamental shift has taken place within the party. This is a success of the LGBT movement, and it may be true that public opinion is driving these decisions as well, but it’s still worthy to note.
But bottom line — thank you, President Obama and Attorney General Holder. I’m incredibly proud to be a Democrat today.