Obviously, the big stunning news that wasn’t really expected but is totally welcome today is the Obama administration announcing that they believe the Defense of Marriage Act—signed by the last Democratic President, Bill Clinton—is unconstitutional, and therefore they’re not going to enforce it any more.
Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman. He noted that the congressional debate during passage of the Defense of Marriage Act “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the (Constitution’s)Equal Protection Clause is designed to guard against.”….
Holder wrote to House Speaker John Boehner, R-Ohio, that Obama has concluded the Defense of Marriage Act fails to meet a rigorous standard under which courts view with suspicion any laws targeting minority groups who have suffered a history of discrimination.
It’s hard to tell what prompted this, and it’s possible it was a why-not sort of thing. But I like to think that the Obama administration sees challenges to gay marriage bans percolating up through the courts, and he’s throwing his hat in with the pro-same-sex-marriage people to send a signal to the Supreme Court. As basically everyone knows, the wild card vote should gay marriage come in front of the court is Anthony Kennedy. I’ve been fairly confident for a long time now that Kennedy would vote to strike down bans against same-sex marriage and legalize it across the country, because he wrote the decision for Lawrence v Texas. Yes, it’s been argued that he hedged his bets in that decision and said that it didn’t indicate the legalization of same-sex marriage, but that’s kind of standard bet-hedging in judicial decisions, from what I understand. What is more interesting to me was that Kennedy was extremely sentimental (in a good way) about Lawrence, reading the decision aloud to please all the people whose private sexual choices he just mandated cannot be made criminal.
Now opponents of gay marriage will find that not only with the Justice Department not back them if this gets to the Supreme Court, odds are high they’ll write an amicus brief suggesting same-sex marriage be legalized. That sort of thing can and probably will have a profound impact on Kennedy.
That’s just my prediction. Feel free to spin your own!