Influential New York Times Editorial on Defence of Marriage Act

New York Times Editorial
Mr. Obama Moves Against Bias
Published: February 23, 2011


In a heartening reversal, President Obama has instructed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act. That deplorable 1996 law sanctioned blatant discrimination against the spousal rights of married gays and lesbians.

The announcement by Attorney General Eric Holder Jr. struck at the core of the matter, concluding that Congress had violated constitutional due process in a debate rife with “moral disapproval” of gay men and lesbians — “precisely the kind of stereotype-based thinking and animus” banned by the equal protection clause.

The decision reversed the administration’s untenable position of defending the law’s affront to equal rights even as Mr. Obama made clear his personal opposition. Instead, Mr. Holder said it was no longer possible to advance “hypothetical rationales” in court independent of the bias-steeped record of Congressional enactment.

The act, passed in an election year and signed by President Bill Clinton, arbitrarily denied federal benefits for married couples to married same-sex couples, including Social Security survivor payments and the option to file joint tax returns. It allowed states to refuse to recognize same-sex marriages that are legally recognized in other states.

The president’s decision is a major advancement for protecting the rights of gay, lesbian, bisexual and transgender Americans. It firmly skewers what has been bad law and complements the recent Congressional repeal of the government’s “don’t ask, don’t tell” prejudice suffered by gay men and lesbians serving the nation in the military.

The administration said its revised position was in part because of the fact that current court challenges require a rigorous enforcement standard — “heightened scrutiny” — in the case of protecting minority groups who have suffered a clear history of official discrimination. The courts will still be the ultimate arbiter of the law, but it is vital that the administration dropped its commitment to press wrongheaded defenses. Congress may still pursue its own brief in the courts.

The reversal seems likely to redound into the next election cycle — a fight very much worth having. As a candidate three years ago, Mr. Obama opposed the defense of marriage law but would not endorse same-sex marriage, instead supporting civil unions for gay and lesbian couples. In December, Mr. Obama said his feelings on the subject were “constantly evolving.” Wednesday’s decision raises the hope that they are evolving in the right direction — equal rights for all Americans.

Meanwhile, it is stirring that the president has done the right thing on the marriage law. He has scored Congress’s shabby violation of constitutional rights that supposedly protect all Americans, not just a selected majority in an election year.