Obama's DOMA shift: Why public embrace of gay marriage – and gays – is now certain

The 1996 Defense of Marriage Act (DOMA) was always an odd law. Its main provision, allowing states to refuse to recognize same-sex marriages formed in other states, had no effect: States have never been required to recognize sister-state marriages offensive to their public policy. Its secondary provision, refusing federal recognition to same-sex marriages valid under state law, did not prevent any same-sex couples from marrying. It departed from the long tradition of accepting for federal purposes any marriage valid under state law. And, said federal district judge Joseph Tauro in a decision last summer, it was unconstitutional under the “rational basis” test that governs sexual orientation discrimination in Massachusetts federal courts. Singling out a class of marriages in this unprecedented way was not rationally related to any legitimate state interest.

The Obama administration has defended DOMA’s rationality at the district court level and on appeal from Judge Tauro’s decisions. But on Wednesday, Attorney General Eric Holder announced the president’s conclusion that discrimination against gays and lesbians should be subjected to “heightened scrutiny,” not just the “rational basis” test. Heightened scrutiny is a more demanding approach that courts use for particularly objectionable kinds of discrimination, notably race and sex discrimination. In courts where the appropriate test had not been decided, Holder said, the administration would no longer defend DOMA.

Declining to defend a federal law is not unprecedented. Holder was careful to note that the executive branch will continue to enforce DOMA. But Obama’s endorsement of heightened scrutiny matters. If courts agree, gay rights litigation will look very different. Rational basis review lets government defend its laws on the basis of any remotely plausible justification, regardless of the legislature’s actual purpose. Heightened scrutiny directs courts to look to actual motive, not fanciful conjecture. In DOMA’s case, that means focusing on the relevant statements made by members of Congress expressing moral disapproval of homosexuality. Courts will not engage hypotheticals about procreation and childrearing; they will directly confront the issue of whether such views are a permissible basis for discrimination, or whether they are what Holder called “stereotype-based thinking and animus.”

The administration’s position is a strong indication that the attitude of moral disapproval is on the defensive. It is an important milestone in what looks increasingly like irreversible progress toward full social – and legal – acceptance of gays and lesbians.

Historically, constitutional analysis of discrimination follows a consistent pattern. At one point discrimination is natural; no one thinks to challenge it. A ban on interracial marriage seems obviously justified. Women are excluded from the practice of law because of their “natural and proper timidity and delicacy,” as one Justice wrote in 1873. Homosexuality is deemed a mental disease, as it was by the American Psychiatric Association until 1973.

Later, the discrimination seems less natural and more ideological. Older ideas about segregation or women’s proper roles leave the mainstream for the narrower confines of particular political views. Later still, they seem obviously wrong. Only kooks want to prohibit interracial marriage now, and any justice who based an opinion on women’s natural timidity would be impeached. At some point during this process – after discrimination has stopped seeming natural, but before it seems obviously illegitimate – the Supreme Court steps in to announce that this discrimination is presumptively unconstitutional and must face heightened scrutiny if it is to survive.

This is not activism on the part of the Court. It is a recognition that a national consensus has formed, that the ultimate outcome of the social struggle is no longer in doubt. By adopting heightened scrutiny and striking down the laws of states that persist in discrimination, the justices do not impose their views on the nation. They impose the views of the nation on a minority of outlier states – just what we would expect them to do in enforcing an amendment adopted to secure the national victory over minority states in the Civil War.

There is little doubt that this pattern is replaying itself with sexual orientation. Polls show steadily growing public support for gay rights, and stronger support among younger people.

But how far along are we? The Court usually prefers to wait for clear indications, in state laws or judicial decisions, that the national consensus is in place. In 1967, when it struck down state bans on interracial marriage in Loving v. Virginia, only 17 states still had them. In 2003, when it overturned same-sex sodomy bans in Lawrence v. Texas, they existed in 13 states.

Obama’s endorsement of heightened scrutiny puts the moral and legal authority of the executive branch behind the proposition that discrimination against gays and lesbians is inherently suspect, that sexual orientation bears no relation to one’s worth or ability to contribute to society. When the Supreme Court will take the step to heightened scrutiny is impossible to predict. But this statement by a coequal branch of the federal government surely brings the day closer.

Kermit Roosevelt III is a professor of law at the University of Pennsylvania Law School and the author of “The Myth of Judicial Activism.”