EDGE Los Angeles

The Obama Administration will not defend the anti-gay 1996 law known as the "Defense of Marriage" Act, or DOMA, in two current lawsuits. President Obama believes that DOMA violates the Fifth Amendment’s equal protection clause.

Under the provisions of the act, signed into law by then-president Bill Clinton, gay and lesbian families may not be recognized legally by the federal government. That means that even those same-sex couples that are married in the five states where family parity is legal can only access state-level benefits and protections related to matrimony. The law also allows states to ignore marriages granted in other jurisdictions. Section 3 of the law defines marriage as a legal union of one man and one woman.

Attorney General Eric H. Holder. Jr., made a statement on Feb. 23 on the decision not to defend the law.

"In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court," Holder noted. "Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

"Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated," Holder’s statement continued. "In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply."

A New York Times article last month took note of exactly this dilemma, predicting that the Obama administration would be required to abandon its carefully cultivated middle of the road approach to GLBT rights in the case of the court challenges to DOMA. The administration was forced to choose which route to take given a deadline for its response in two federal lawsuits.

The cases are legally complex, the New York Times article noted. In July, 2010, a federal judge in Boston ruled that DOMA interferes with Massachusetts’ ability to determine who can get married, infringing upon the state’s rights. That suit was filed by Gay & Lesbian Advocates & Defenders (GLAD), which argued that DOMA violates "the U.S. Constitution’s guarantee of equal protection of the laws," as a summary of the suit prepared by the HRC puts it. Last November, the ACLU also brought suit in New York. The Obama Administration had until March 11 to decide whether or not to defend DOMA in court in those cases.

Because of where they were filed, the appeals court handling the suits has no precedent to rely on in formulating a judgment. That has the potential to place Obama in a politically sticky spot: strongly indicating a definite stance about how to handle the needs of the GLBT community--and even, in effect, making a statement about who and what gays are--will almost certainly provoke a firestorm of controversy. In the resulting political climate it could be impossible for the president to strike the measured political tone for which he is noted. Taking definite action seen as embracing gay marriage will most likely alienate those who are skeptical about recognition for same-sex families.

As a candidate, Obama said both that he wants to see DOMA abolished, and that he believes marriage should be a special right reserved exclusively for heterosexual couples. More recently, the president told the press that his attitude toward marriage equality has been "evolving," prompting speculation that Obama may be preparing the ground for a major push for gay and lesbian family equality in time for the 2012 elections.

But the administration’s being prematurely forced into direct action on DOMA either way could affect any delicate political calculus that might be in play.

"Now they are being asked what they think the law should be, and not merely how to apply the law as it exists," Cornell University’s Michael Dorf, a professor of law, told the New York Times. "There is much less room to hide for that decision."

Obama’s justice department has followed the tradition of upholding existing law, to the displeasure of some in the GLBT community. But in at least one instance, the president’s careful middle-of-the-road course seems to have reached the mark: much as he has spoken in favor of recognizing same-sex couples in some capacity, Obama also had championed the cause of GLBT patriots and called for the end of "Don’t Ask, Don’t Tell"--though taking little in the way of direct action to end it, saying that he would rather Congress abolish the anti-gay law. Late last year, that’s what happened.

Given the March 11 deadline, the Obama administration did not have limitless time to work out its ideal solution. As with DADT, Obama has said that he would rather see Congress--rather than the courts--rid the law books of the 1996 measure, which targets same-sex families for specific exclusion from any form of federal recognition. A potentially less desirable outcome is to allow the courts to decide the issue.

"I have a whole bunch of really smart lawyers who are looking at a whole range of options," Obama told the media. "I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible."

It also may not be possible to forestall a firestorm from the anti-gay side of the debate. Though public opinion increasingly favors granting gay and lesbian couples full legal recognition and equality, religious conservatives, many in the mainstream, and even some GLBTs, are opposed to the idea. Marriage equality opponents are likely to use the administration’s decision not to defend DOMA to ignite a firestorm to play up the issue, raise funds, and field political candidates. The support of the GLBT community may not be a foregone conclusion: Gays may refuse to support Democrats, who already took a beating in last year’s midterm elections.

Even more nuanced factors are at work in the situation. Explained The New York Times, "Courts give a class [a certain level of protection] if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it." That was the "standard of review" to which Holder referred in his statement.

Next: ’Standard of Review’ Crucial