Was President Obama correct for defending the Defense of Marriage Act in previous cases?

A	Yes, he was following executive precedent and adhering to precedents set by the circuit court in which the case was tried.

B	No, he went against his campaign promises and used arguments detrimental to the fight for gay marriage.

In his February 23 letter announcing the decision to stop defending the Defense of Marriage Act (DOMA), Attorney General Eric Holder explained that in previous cases, the administration had defended DOMA under rational basis review. In the jurisdiction where these previous cases were tried, earlier court cases had established a precedent which held “that classifications based on sexual orientation are subject to rational basis review.” This precedent meant that the cases “did not have to satisfy some form of heightened scrutiny.” Applying heightened scrutiny instead of rational basis review would have meant establishing that cases involving sexual orientation deserved some protection from discrimination. The Justice Department made the strategic decision not to challenge the use of rational basis review.

However, in the current two cases involving DOMA, the jurisdiction does not have binding precedent requiring that classifications based on sexual orientation be subject to rational basis review. Since there is no binding precedent, the Justice Department is going to argue that in cases involving sexual orientation courts should use heightened scrutiny. Arguing for heightened scrutiny means more protection for gay rights.

Obama received criticism for invoking incest and adults marrying children during his Justice Department’s defense of DOMA. Of course, Obama did not personally bring those arguments to the court; his Justice Department did, and they were probably relying on briefs that the previous administration had prepared to defend DOMA. Although the President followed executive precedent in defending a standing law, defending DOMA meant going against his statements in support of gay rights. Previously, Obama has opposed DOMA but has said it is Congress’s duty to repeal it; now he’s trying to use these DOMA cases to protect gay rights and heighten the protection of gay rights in the courts.

Eleanor Brown

Was President Obama correct for defending the Defense of Marriage Act in previous cases?

Eleanor Brown

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