Obama Changes Course on Defense of Marriage Act

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From left: Image Source / Getty Images; Alex Wong / Getty Images

If Democrats still reeling from the Republican surge that remade Congress needed a reminder that President Obama hadn't abandoned his progressive agenda for the mushy center, he gave them a powerful one on Wednesday. In the face of one of the strongest conservative tides in modern American politics, Obama's announcement that he had reversed course on gay marriage rocked both sides of that contentious issue, with advocates and opponents alike expressing nothing short of shock at the news. "I think it is almost unprecedented," the Rev. Al Mohler, president of the Southern Baptist Theological Seminary in Kentucky, told TIME on Wednesday night, marveling at how fast the political and legal landscape associated with gay rights has changed since Obama was elected. "We are looking at a moral world turned upside."

And a legal one as well. In announcing Obama's policy shift, U.S. Attorney General Eric Holder said on Wednesday that the President now believes that the U.S. Constitution prohibits discrimination against gays and lesbians and that it requires any laws that do so — including the 1996 Defense of Marriage Act — to withstand a higher level of constitutional scrutiny. DOMA, he concluded, utterly fails to meet that standard and cannot be defended by the U.S. government.

In making that determination, Obama has gone well beyond his long-stated opposition to the law as bad policy — as a candidate, he supported civil unions but opposed gay marriage, but said as recently as December that his "personal feelings are constantly evolving" — and has declared as President that it violates the Constitution. That's a rare enough — though not unprecedented — step, since the U.S. government usually defends laws passed under previous Administrations, even if the President disagrees with them. But in deciding that the law is unconstitutional, Obama did more than end the government's support for DOMA; he also made an argument that all laws that discriminate on the basis of sexual orientation must face heightened constitutional scrutiny.

That has powerful legal implications across the board on gay rights. Its most immediate effect will come in two ongoing federal lawsuits that have challenged the legality of DOMA, which forbids the federal government from recognizing gay marriage and means that gay marriages performed in states where they are legal need not be recognized by states where they are not. But the impact goes well beyond just those two cases. On the other side of the country on Wednesday, David Boies and former U.S. Solicitor General Ted Olson told reporters that Obama's decision would boost their attempts to strike down California's Prop 8, the 2008 voter initiative that changed the state constitution to forbid gay marriage. Last year, a federal judge agreed that the ban violated the U.S. Constitution, but that case has been tied up on appeal since then.

Obama's announcement bookends another major step toward ending the Clinton-era discrimination against gays. Two months ago, the President signed into law a repeal of the "Don't ask, don't tell" policy that required gay service members to not reveal their sexual orientation, countering the criticism that he had neglected gay rights early in his presidency.

In both of the DOMA cases, federal judges have already found the law unconstitutional, and as is the custom, the Administration had been defending the law in the courts. Those efforts will now stop, as Holder explained in a statement announcing Obama's policy change on Wednesday. "After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Holder said. "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the department not to defend the statute in such cases. I fully concur with the President's determination."

The turnaround won't stop the appeals by itself; it simply means the government will no longer assert that the law is constitutional on appeal. Holder noted that it will be up to members of Congress to seek permission from the courts to intervene in the cases to defend the law, if they chose to, though others have said it's unclear what role Congress could eventually play.

Meanwhile, Boies and Olson filed a motion on Wednesday with the Ninth Circuit Court of Appeals asking that it lift its stay of the judge's order and immediately let gay couples in California wed. The President's new position is of enormous help in their case to the appellate courts, Olson said. "We strongly feel that now that the governor of California and the attorney general of California and with today's announcement the attorney general and President of the United States have come to conclusion that discrimination on basis of sexual orientation is prohibited that will be very persuasive in handling our case."

The real impact, though, goes further still, Boies said. While the Supreme Court will ultimately have the final word on gay marriage, Wednesday's decision and the growing number of court decisions in favor of gay rights that preceded it clearly foreshadow the end of legal discrimination against marriage — at least under the Constitution as it is now written, he said. "Under the equal protection and due-process clauses of the United States Constitution, discrimination against gays and lesbian citizens in terms of their right to marry is unconstitutional," Boies said. "That has now been recognized by the Attorney General and the President of the United States, by Judge (Vaughn) Walker in our case and by many other judges. If there is going to be a continuation of that kind of discrimination, opponents of gay marriage are going to increasingly recognize that they need a constitutional amendment to allow that to continue."

He believes that simply will not pass, no matter how strong a showing Republicans had last fall. "There is no chance that a constitutional amendment will pass," he said. "This country has moved beyond this."

Reached in Colorado late Wednesday, Mohler was still absorbing the impact of Obama's decision as he told TIME he fears that Boies is right. Too many conservatives, he said, merely "give lip service" to the fight against gay marriage and other gay-rights initiatives. If a push for a marriage amendment comes, he said, he'll support it strongly. But he has "honest doubt" that any such push will be strong enough to counter the steady acceptance of gay marriage in the society, he said. "I want to point out that the clear need for (the federal amendment) has been around for a sufficient amount of time that if there were any political will, or enough persons willing to take the political risks, to advocate for or to push an amendment, that would have happened a long time ago."

It's not that there aren't many people who will be aghast at Obama's decision, Mohler said. There are, but he called the President "wily, and a smart politician" who has determined that he won't pay a political price for taking a position that only two years ago would have seemed almost unthinkable.

"There will be millions and millions of folks who will be absolutely certain that this is a harmful action, that this is a tragic abdication of political responsibility and beyond that, of moral conviction," Mohler told TIME. "But what we are seeing here is not even so insubstantial as to be called a trend. It has hardened into a trajectory, and the gay-rights movement is part of a larger pattern in our culture ... I am extremely pessimistic that it can be reversed in any short order. I think the hope for and recovery of a culture that honors and sustains natural marriage is going to require the recovery of fundamental assumptions that are clearly no longer operative for millions of Americans — including many conservatives who oppose same-sex marriage."

Even Olson and Boies said they never expected the national landscape around gay marriage to change so quickly when they filed their case attacking Prop 8 a little over a year ago, though they did believe time was on their side. At the time, even many gay-rights advocates worried loudly that the case was premature and risky, that the country was simply not ready for gay marriage.

But in announcing the change of position on Wednesday, Holder said much has changed — not just in the past two years, but since 1996, when Congress passed DOMA in reaction to the Hawaii Supreme Court's decision in favor of gay marriage in that state. (Hawaii soon passed a constitutional amendment to reverse that court decision. On Wednesday, its governor signed into law a bill creating civil unions there.) "Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military's 'Don't ask, don't tell' policy. Several lower courts have ruled DOMA itself to be unconstitutional."