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No More Defending the Defense of Marriage Act

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Jami Floyd

When my good friend — and one of the smartest people I know — Matt Gonzalez switched from the Democratic Party to the Green Party in 2000, after a run for District Attorney of San Francisco, I asked him why. There were many reasons, but chief among them was gay marriage. Matt told me he could no longer belong to a party that would not support full equality for all citizens, including the right of same-sex couples to marry. That stayed with me.

A lot has happened since then. In 2003, Matt ran for mayor of San Francisco. His opponent, Gavin Newsom, shared his view on this issue, if little else, and when he won the election, he famously opened San Francisco's City Hall to gay couples wanting to marry. That action paved the way for Proposition 8 and all of the litigation that's followed. As I have noted along the way, it has been a horrible and hateful rollercoaster of on-again, off-again marriage for gay couples in the Golden State.

And the battle for equality rages on across the country. Until 2004, gay couples couldn’t marry anywhere. Now, same-sex marriage is legal in Massachusetts, Connecticut, Iowa, Vermont, Maine and most recently, New Hampshire. But 36 states have statutes on the books prohibiting gay marriage, including some that also have constitutional bans. Only three states — New York, Rhode Island and New Mexico — have taken no action in either direction.

It has become one of the most contentious issues of our time. There is one thing, however, proponents and opponents would likely agree upon: these battles being waged in the states are all part of a larger war about what we stand for as a nation. Is ours a limited democracy — retrenched, traditional and exclusionary? Or is our democracy expansive and inclusive — one that evolves over time?

On Wednesday, the Obama administration placed itself on the side of an expansive and inclusive democracy. The U.S. Department of Justice announced that it will no longer defend the federal law banning same-sex marriage, the so-called Defense of Marriage Act (DOMA).

It is easy to be a progressive when you are running for office. But once you win, it becomes a lot harder to be true to your promises. Practical realities set in, whether you are president of the local school board or President of the United States.

Nowhere is that lesson better demonstrated than at the Department of Justice, where idealism must too often give way to fine points of law, practical political realties of the day, or both. Consider Guantanamo Bay. On his very first day in office, President Obama promised to close the prison camp there. Now, during his third year in office, the camp remains open. As I’ve mentioned here before, the hopes that idealists had for closing the camp ran smack into the practical realities of doing so.

Not so with the administration’s decision on whether to defend DOMA.

Until now, the Department of Justice has defended section 3 of DOMA in court. It states: "[T]he word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife."

Then, came this: 

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…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. (DOJ Statement)

For two years, the administration walked a careful line on the issue of gay marriage. Finally, push came to shove. Two new court cases, with no applicable precedent required the administration to take a firm stand. President Obama and his Justice Department chose to stand on the right side of justice — and history.

Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues. You can follow her on twitter.