[Update: Here is a summary of the purposes of DOMA that suggested its hortatory nature, stating (while also reaffirming in a way that singled out one group) current law at the time. Also, again, this is a big step since it is a basic statement on homosexuals as a whole, not just one subject.]
The Orwellian "Defense of Marriage Act" has three sections. The first is the title. The second holds:
This is probably the most familiar aspect of the law, one passed when it looked like Hawaii and perhaps other states were at the brink of recognizing same sex marriage and in some case would force it on other states. But, the news of the day (see here and here, official statements) involves the third section:
But, a new lawsuit in the Second Circuit raised a problem (and opportunity). Unlike the Ninth Circuit (old time rational basis still good law, though for DADT, it used intermediate scrutiny for substantive due process and Lawrence v. Texas underlined the equal protection component of that*), the level of scrutiny is an open question. So, the Administration would have to submit their position on the question. And, upon review, they decided that current law requires heightened scrutiny and it would be unreasonable for them to say otherwise. (See official statements, summarizing the arguments.) But, as a sort of middle ground, they will continue to enforce the law and invited the courts (who are left the ultimate role of interpretation) to allow others to defend the law. This is troubling, why?
If "President Palin" took the same approach for the health law, I am not seeing the problem. Not that, unlike here, the case law significantly since its passage called the law in question. I also think heightened review calls into question not recognizing same sex marriage generally. But, especially since D.C. has a same sex marriage law, the litigation in question is not about getting married in the first place. It is singling out those recognized as such by a state (or nation like Canada) and depriving them of benefits. Toss in the sentiments expressed when DOMA was passed, this makes it a more blatant case.
This is a great step, reasonably applied.
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* Obama now says DOMA is a violation of Equal Protection, but homosexuals are protected in other respects too, so this isn't the only way to go. If homosexuals have a liberty interest (Lawrence v. Texas), it applies in this context as well. And, as noted, some courts applied intermediate scrutiny in that context, even if not in the equal protection area. Or, rather, didn't update past rulings in light of a Supreme Court ruling that focused on due process, if with a lot of equal protection gloss.
The Orwellian "Defense of Marriage Act" has three sections. The first is the title. The second holds:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.Regular public policy rules gave states the power to not recognize same sex marriages, if they violate state policy pursuant to the rules of that state. This law might have put a thumb on the scales in some cases, but overall had a gratuitous flavor in that respect. If same sex marriage is protected under the Equal Protection Clause (or whatever), this application of the Full Faith and Credit Clause won't save it. Nonetheless, as applied to the federal government, this provision has some real bite. I am not aware of a current lawsuit that involves let's say a Connecticut same sex couple wanting Puerto Rico to recognize their marriage contra to this section. A custody judgment would be different (public policy rule doesn't apply and isn't the marriage anyway).
This is probably the most familiar aspect of the law, one passed when it looked like Hawaii and perhaps other states were at the brink of recognizing same sex marriage and in some case would force it on other states. But, the news of the day (see here and here, official statements) involves the third section:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.Prof. Balkin has a good discussion here on the powerful likely effect (with precedent regarding race) the Obama Administration's new official position on this section will have. They have thus far defended the law using rational basis review, basically arguing that the law allows states to experiment and not force new marriage policies on society too quickly. Pretty weak, but old time moral arguments or ones based on child rearing were rejected. Some distasteful sounding comments in preliminary briefs were replaced as noted on Gay USA, but arguments that they (with precedents that included John Roberts and Bush) need not defend a patently unconstitutional law at all was resisted.
But, a new lawsuit in the Second Circuit raised a problem (and opportunity). Unlike the Ninth Circuit (old time rational basis still good law, though for DADT, it used intermediate scrutiny for substantive due process and Lawrence v. Texas underlined the equal protection component of that*), the level of scrutiny is an open question. So, the Administration would have to submit their position on the question. And, upon review, they decided that current law requires heightened scrutiny and it would be unreasonable for them to say otherwise. (See official statements, summarizing the arguments.) But, as a sort of middle ground, they will continue to enforce the law and invited the courts (who are left the ultimate role of interpretation) to allow others to defend the law. This is troubling, why?
If "President Palin" took the same approach for the health law, I am not seeing the problem. Not that, unlike here, the case law significantly since its passage called the law in question. I also think heightened review calls into question not recognizing same sex marriage generally. But, especially since D.C. has a same sex marriage law, the litigation in question is not about getting married in the first place. It is singling out those recognized as such by a state (or nation like Canada) and depriving them of benefits. Toss in the sentiments expressed when DOMA was passed, this makes it a more blatant case.
This is a great step, reasonably applied.
---
* Obama now says DOMA is a violation of Equal Protection, but homosexuals are protected in other respects too, so this isn't the only way to go. If homosexuals have a liberty interest (Lawrence v. Texas), it applies in this context as well. And, as noted, some courts applied intermediate scrutiny in that context, even if not in the equal protection area. Or, rather, didn't update past rulings in light of a Supreme Court ruling that focused on due process, if with a lot of equal protection gloss.