The decision this week by President Barack Obama and Attorney General Eric Holder to no longer defend the Defense of Marriage Act is legally and morally correct. The law unconstitutionally targets gays and lesbians for discriminatory treatment, contrary to equal protection guarantees. And fairness and justice demand that legally married gay and lesbian Americans enjoy the full privileges that flow from that union.
In the 15 years since DOMA was passed, the views of the public and legal community have evolved. There is broader recognition that same-sex marriage has essentially the same social impact as a marriage commitment between a man and woman. For children of gays and lesbians, growing up with two legally responsible parents is clearly beneficial. This evolution has led to a broader acceptance of same-sex relationships. Today, there is majority support for legal equality for gays and lesbians in many spheres, including in the military with the repeal of "don't ask, don't tell." The public is evenly divided over same-sex marriage.
When DOMA passed in 1996, it was an election year. Then, the issue of same-sex marriage was being used as a bugaboo to drive conservatives to the polls. Marriage laws are typically left to the states, but DOMA nudged those aside, barring the federal government from recognizing same-sex marriages even if they were valid under state law.
Five states and the District of Columbia grant same-sex marriage licenses, and the federal government's rejection of those marriages has had significant consequences. In one of the cases that the Justice Department will no longer fight, an 81-year-old widow is seeking a refund of $360,000 in estate taxes she had to pay when her spouse died, because her marriage — performed in Toronto — was not recognized by the Internal Revenue Service. If DOMA is found by the courts to be unconstitutional, an array of federal agencies would have to stop discriminating against same-sex married couples.
The administration's about-face came during deliberations over how to approach two cases challenging the law under the Constitution's equal protection clause. If the department were to defend DOMA, it would have to argue that homosexuality is a choice, not a sexual orientation, and gays and lesbians are not part of an insular group that has been targeted for official repression. Of course, this defies the experience of gays and lesbians in America. Their history is similar to that of racial minorities and women, who also suffered under laws designed to disadvantage them. In fact, it wasn't until 2003 that the U.S. Supreme Court barred states from criminalizing homosexual relationships.
When laws target groups that have been discriminated against, the courts impose more scrutiny on whether such laws are justified or just a reflection of social bias. Under this equal protection analysis, DOMA should not survive a court challenge and is unconstitutional.
Congress will have the opportunity to step in and take up the defense of DOMA, and it may be that the Republican-led House will choose to do that. But Obama and Holder are right to step away and refuse to defend a law that is indefensible. They are on the right side of history.