Gay Rights in the Obama Administration

By Chrissy Foot

In 2008, Obama won the support of the gay rights community with his inclusive rhetoric and ambitious campaign promises. Over the next two years, however, he disillusioned many of his gay supporters by failing to follow through on his major promises. The past few months, however, represent an uncharacteristically aggressive change in approach that will likely salvage his standing with this community.

After his slow start, the Republican gains in the midterm elections had the potential to exacerbate Obama’s lack of political will in this arena. However, perhaps surprisingly, he did not respond with more calculation and caution. Recently, he has both overseen the long-awaited demise of the military’s Don’t Ask Don’t Tell (DADT) policy and seriously curtailed the government’s defense of the Defense of Marriage Act (DOMA).

With respect to DADT, facing the end of the Democratic-controlled House, Obama stepped up his advocacy for ending the policy before the new Congressional term. Now at last, he exercised his political muscle to get the Senate to join the House in repeal. It was “difficult promise kept” because it “cost a lot of political capital and a lot of work . . . [yet] this is the President’s victory [ ] and his base will reward him for it,” predicted Rachel Maddow. See www.eclectablog.com/ 2010/12/rachel-maddow-this-is-presidents.html.

Obama’s actions with respect to DOMA, by contrast, were based in legal analysis and argument. In substance, this law: affirmed that states can set the rules for marriages within their borders (Sec. 1); announced that states can decide for themselves whether to acknowledge other states’ same-sex marriages (Sec. 2); and provided that states’ lawful same-sex marriages would be not recognized as valid under federal law (Sec. 3).

DOMA was passed in 1996 and signed by President Clinton, the same year the Supreme Court decided in Romer v. Evans that a Colorado law banning antidiscrimination protections for gay people was unconstitutional. That law could not survive even “rational basis” review under the Equal Protection Clause because its sole purpose stemmed from a “bare desire to do harm” to a politically unpopular group.

Among the subsequent legal challenges to DOMA were two consolidated District of Mass. cases that focused on Section 3: 1) Gill v. Office of Personnel Management challenged the denial of federally-based marital benefits (e.g., filing joint taxes, social security, job benefits) to legally married same-sex Massachusetts citizens, and 2) Massachusetts v. Health and Human Services brought a 10th amendment challenge to the federal government’s intrusion into this area of traditional states’ rights. In his 2010 decision, Judge Tauro examined and rejected each rationale for the law offered by the government, finding that none served a legitimate government purpose. Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010).

Last month, Attorney General Holder informed Speaker Boehner of the President’s decision that DOJ would stop defending DOMA in two Second Circuit cases and the Section 3 portion of the First Circuit cases. Holder conveyed DOJ’s new analysis that heightened scrutiny, rather than rational basis review, was appropriate.

In its reanalysis of the level of scrutiny, DOJ evaluated the factors for when a classification was “suspicious” and found that each supported heightened scrutiny: (1) whether the group has suffered a history of discrimination; (2) whether the group’s distinguishing characteristics have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society”; (3) whether the group is a minority or is politically powerless; and (4) whether individuals “exhibit obvious, immutable or distinguishing characteristics that define them as a discreet group.”

Under heightened scrutiny, DOJ needs to show that DOMA is substantially related to serving an important government interest. However, DOJ cited evidence that the “purposes” behind DOMA had more to do with moral disapproval, stereotypes, and private biases, than with any actual governmental interest. Therefore, DOJ concluded that it could not establish constitutionality.

DOJ’s withdrawal of legal defense is provided for by 28 U.S.C. § 530D. While rare, the last four presidents each used this process. See www.glad.org/ uploads/docs/publications/doma-doj-faq.pdf. As required, Holder’s letter to Boehner invited Congress to take over the litigation, if desired. It also stopped short of withdrawing from the cases, to the extent that non-Section 3 challenges remain, or that the courts do not apply heightened scrutiny. Further, it made clear that the government would not stop enforcing the law and that agencies will continue to comply with it, unless it is overturned by the courts. Speaker Boehner has asked Congressional lawyers to defend DOMA. Meanwhile, Senator Feinstein and Representative Nadler have each introduced bills (“The Respect for Marriage Act”) to repeal it.

A recent poll shows that for the first time, more support same sex marriage than oppose it. This may show that, true to his cautious form, Obama is more following popular opinion than truly leading. Even so, these recent events represent quite a turnaround. Indeed, “the practical impact of the US Government placing its prestige behind the proposition that gay people can not be made second class citizens under our constitution, it is difficult to overstate,” said Tobias Wolff, Law Professor at Univ. PA and Obama Campaign Legal Advisor.

Chrissy Foot, former member of the NLG Board, is a federal attorney in Boston and an active member of the Guild.