Very important editorial in today's New York Times about DOMA. First, the Obama administration doesn't have to defend that discriminatory law, but it does. Second, the standard of review shouldn't be rational basis when a group of Americans are subject to the discrimination of DOMA, simply because of who they are. It's wrong -- and requires stricter scrutiny by the courts. The DOJ should admit it and argue accordingly:
Two new lawsuits, filed in Connecticut and New York, challenging the Defense of Marriage Act now offer the president a chance to put the government on the side of justice. We urge him to seize it when the administration files its response, which is due by March 11. The executive branch’s duty to defend federal laws is not inviolate. This one’s affront to equal protection is egregious.These cases are going to be working their way through the system over the next couple years. Every time the Obama administration defends DOMA, there's going to be a blow up. The geniuses at the White House, DOJ and on the campaign should fix it. Arguing for stricter scrutiny would be a helpful step -- even if it makes Republicans mad.
As in the Massachusetts cases, there are two crucial questions here. The overarching one, of course, is whether it is constitutional for the federal government to deny benefits to some people who are legally married under their state’s laws. Much also depends on the standard of review. How should courts evaluate claims that a law discriminates against gay people?
On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry.
By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so. If conservatives in Congress want to enter the case to argue otherwise, so be it.
