President Obama announced Wednesday that the Department of Justice should stop upholding the Defense of Marriage Act, the current federal law that has restricted marriage to opposite sexes since 1996. This is a BIG change from his administration’s previous stance on gay marriage (typical Democratic fare of defending DOMA and celebrating civil unions) so gay rights activists are now celebrating this as real-Shepard Fairey-Obama-HOPE for legalized gay marriage.
The news was released in a letter from Attorney General Eric Holder that explains in lots of complicated legal speak why the administration has now found the law to be unconstitutional. To give a cliff notes version of the letter…because DOMA draws distinctions between gender, it falls under “heightened scrutiny,” which means the federal government is required to prove the distinction is legitimately important to a government interest. Holder and Obama have now concluded that DOMA cannot be defended as a legit government interest without using “numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships […] the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against” that have dominated the judicial record in the past.
Basically, Obama is stating that: (a) there is no legitimate reason for the government to prevent gay marriage and (b) acts like DOMA have been helped along by homophobia, so the act is unconstitutional.
This really isn’t some landmark change of discourse; those ideas have been around for a good while. I mean, I’m pretty sure most people can agree that homophobia, bolstered by the AIDS epidemic Red Hot was created to combat, was around when DOMA was passed. What is noteworthy is that Obama is making these ideas an official policy viewpoint. Even though Holder’s letter was careful to establish that DOMA will remain in effect (Obama’s just telling federal judges to stop defending it in court, not reversing past Congress’ actions), Obama is legitimizing the idea that homophobia is unacceptable and that the government really has no business defining marriage.
The President has been vocal about how his ideas on gay marriage are constantly changing, so this seems to indicate he’s following a progressive trajectory, especially after the repeal of Don’t Ask, Don’t Tell (Thanks, Lady Gaga). That’s cause for celebration for gay rights activists, who up to this point have been highly critical of Obama’s inaction on gay rights issues, but many cynics are saying that this is just appeasement for an influential Democratic voting block. Personally, I think regardless of Obama’s political intentions, the fact that he was willing to insert these incredibly powerful, but even more so empowering, ideas into the public consciousness says a lot about his stance on gay rights. This alone is by no means enough for the millions of gay couples hoping to marry, but Obama is finally exercising his Presidential influence to advocate for gay couples on a stage and scale that they don’t have.
Now, we just have to see if Congress and the rest of America decide to follow the President’s example. Si se puede?