DOMA Done?

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Same-sex couple Shelly Bailes (L) and Ellen Pontac celebrate the ruling to overturn the ban on gay marriage outside of the Philip Burton Federal building August 4, 2010 in San Francisco, California.

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law and author of Covering: The Hidden Assault on Our Civil Rights, and Michael Lavers, the national news editor for the gay-oriented Edge Media Network, reacted to the DOJ's decision to stop defending the Defense Of Marriage Act (DOMA) in federal court.

President Obama and U.S. Attorney General Eric Holder surprised everyone on Wednesday with their unsolicited announcement that the Department of Justice will no longer defend DOMA, the 1996 statute that defines marriage for all federal purposes as being between a man and a woman.

The administration's stance that DOMA is unconstitutional will potentially have broad implications for the lives of same-sex couples across the nation, some of whom are currently engaged in lawsuits against the federal law.

But same-sex marriage advocates cannot yet hang up their hats. "The executive branch is getting out ahead of the U.S. Supreme Court in making this assessment," Yoshino said.

There's a really sharp distinction that I'd like to make between not defending a law and not enforcing a law. So Obama is not defending this law, but he has directed Holder, and Holder has said that he will continue to enforce DOMA, so DOMA is still on the books, it's still being enforced, all Obama is saying and all Holder is saying is that they will not defend this in courts. Congress can now come in and defend it in the courts, and then we will have this ultimately resolved by the Supreme Court or by legislative repeal.

A president defying a federal law is rare, but not unprecedented, Yoshino said. In fact, the three presidents before Obama have each done it with respect to a congressional statute. George W. Bush declined to defend a congressional statute that sought to ban media in subways that advocated for drug reform; Bill Clinton declined to defend a congressional statute that sought to supersede the Miranda rights; and George H. W. Bush declined to defend a federal affirmative action program.

There are legal and political explanations for Obama's change of course. On the legal side, there are a number of cases in which same-sex couples claim it's unfair that they have benefits under state law but not under federal law. Confusing the matter for legal laymen, the Obama administration actually appealed a case from the 1st Circuit Court last fall so it could defend DOMA, because there was a clear precedent in the Circuit which said that gays and lesbians are not a minority suffering from discrimination, and therefore should not get heightened scrutiny. But in the Second Circuit Court case, there was no precedent and Yoshino said that may have caused the administration to do some "soul searching" concerning DOMA.

The other explanation is the political explanation of, 'we see which way the wind is blowing here in terms of public opinion polls, more and more people are for same-sex marriage, we've gone from a nation where a supermajority was against same-sex marriage just five years ago, to now polls that are now showing a bare majority being in favor of same-sex marriage.' So the nation has shifted very quickly and I think Obama understands that, and when he talks about his own struggle with these issues, and how he's evolving on these issues in the same way the nation is, I think that's what he's getting at.

Ultimately this is really a state vs. federal issue—who has the right to regulate marriage? Michael Lavers said while the DOJ's new position is certainly a "game changer," we should keep in mind that individual states are continuing to pass different marriage equality, civil union, and anti-same-sex marriage laws.

While it's certainly welcome that the administration announced this position yesterday, it's really important to point out that the push for marriage equality continues around the country. So yes, it certainly affects real life same-sex couples, but the battle is far from over.

Right now we're still in a wait-and-see period regarding DOMA. The DOJ isn't going to defend it in the courts until it is decided by the U.S. Supreme Court or it gets repealed by Congress, but it's technically still alive. Assuming it is struck down eventually on constitutional grounds, the end of DOMA would result in same-sex couples having equal federal rights and entitlements as opposite-sex couples, which they currently do not have.