ACLU Expert Explains Meaning of Justice Dept.'s DOMA Decision

It was the most controversial decision by the U.S. Department of Justice since Barack Obama became president. In late February, U.S. Attorney General announced to blaring headlines that his department would not defend the 1996 Defense of Marriage Act, or DOMA, in two pending lawsuits.

Since that decision, Sarah Palin and a slew of those on the right have roundly denounced it as unconstitutional. Talkshow pundits like Sean Hannity and Rush Limbaugh accuse Obama of acting like a "king" who can abrogate the authority of the legislative branch rather than acting like an elected executive whose responsibility is to uphold and defend existing laws. And 2012 presidential contender Newt Gingrich (and others) have gone so far as to argue that the action is an "impeachable" one.

More troubling is the decision by the leaders of the U.S. House of Representatives to challenge the DOJ decision. The GOP-majority House has just announced it will, indeed, take steps to defend DOMA.

Lost amidst all of this media furor is what exactly the DOJ actually did and why.

James Esseks is the director of the American Civil Liberties Union's LGBT Project. As such, he has had a front-row seat in this fight and knows about as much about it as anyone in the country right now. Esseks sat down with Edge and explained the intricacies of the argument -- and why he believes it's valid and will be upheld.

EDGE: I've read some commentary on our side that this was argument, ironically, for states' rights. That is, states like Massachusetts or Iowa, where gay marriage is legal, are having their citizens' rights repelled in states that reject their citizens' unions.

James Esseks: No, it's not states' rights that pushed them [the DOJ] over the edge.

In the cases filed in the Second Circuit, which covers New York, Connecticut and Vermont, a point of law hasn't been decided, whereas it had been decided; whereas in California, there are cases pending. This is the real issue: Where does the government draw the line when government treats gay pepole badly? Do they presume that the government needs to come up with a good reason to treat gay people differently?

EDGE: Aha! So in other words, it's a question of the government singling out a group for particular legal scorn --�for no good reason other than that this group is considered a pariah.

J.E.: What Obama said to Congress [through the ruling] is that, when you look a test, a higher test applies. Once the higher test applies, then we the government have a good reason to dump on gay people. The DOMA argument did not have a good reason.

The court cases that developed this test said that, when the government treats people badly, it has to have a good reason for that. That test was developed in the context of race discrimination and then against women, then other contexts.

The concept of "heightened scrutiny" grew out of those other tests - race, sex, disability, a range of things. In some of these, the courts said, "Yes, the government has a reason." In others, "No."

EDGE: What about all the screaming on the right about how the executive branch is abrogating its responsibility to act as the actor of the laws passed by the legislative branch (and generally signed into law by the president, as was DOMA by President Clinton, no less)?

J.E.: In fact, the decision by the president and the Department of Justice is a display of incredible integrity and faithfulness in the Constitution. The president is getting heat from folks from not defending an act of Congress. But he did because he cares deeply about the Constitution.

The Constitution promises us that everybody should be treated equally.

EDGE: Well and good. But they're saying, if anything, it's up to courts to judge the illegality of a law --�not the executive branch.

J.E.: They are only articulating a part of a government's duty. Absolutely the executive must defend acts of Congress -- but only when a reasonable argument can be made for constitutionality of a law.

EDGE: Some on the right are saying, "OK, two can play at this game. So when we get one of our own in as president, he (or she) can say that abortion denies the fetus the protection of life." Is this a slippery slope?

J.E.: First of all, there would have to a be a specific federal statute that's challenged for that to happen --�a federal abortion-related statute. Then, yes, they could do what Obama did. I think that what happened here is going to be far, far and away the tiny, tiny exception, though.

The history of the Department of Justice has shown very few contexts in which this has happened. The ones I know of number around 10. The law says it's not just where you happen not to like the law, but you also have to have a reasonable argument.

EDGE: So this doesn't establish a dangerous precedent.

J.E.: No, this one is incredibly clear. The Department of Justice got it totally right. If we have other cases of such stark constitutionality, I would not be troubled by their refusing to defend the constitutionality of the law.

EDGE: What can interested parties, such as National Organization for Marriage, or Focus on the Family, do to fight this decision? Anything?

J.E.: Organizations that feel very strongly about the constitutional law at issue here, even individuals who feel strongly about DOMA, are free in pending cases to file a friend of the court [amicus curiae] brief. In every single marriage case I know of, organizations have made their views known. They can be heard, and I'm sure they will be heard.

Can those organizations become a party to litigation? A clear "No": In order to be a party in the case, you have to be, well, a party in the case. In the case here, a plaintiff was socked with a $350,000 estate tax from her widow that a straight woman would not. If you're not her family, you're not involved in her case.

Those people [in Focus in the Family and NOM] can still marry. Their rights are still recognized by the federal government.