legal theories

Will Obama’s DoJ Defend DOMA By Claiming Gays Can Stop Being Gay If They Want?

In handling the latest challenges to the Defense of Marriage Act, for which answers from the government are due March 11, Obama’s Department of Justice lawyers must either defend the federal law by saying it is subject to “rational basis” (the easy test) or “strict scrutiny” (the hard test), the New York Times lays out in an approachable way. The two cases challenging DOMA, of course, are Gill v. Office of Personnel Management and Massachusetts v. United States, which so far have ended in our favor, but which DoJ continues to appeal. If DoJ pushes for the easy test, it must convince a judge, as it’s tried before, that the federal government government has an rational basis interest for maintaining the status quo at the federal level (read: not recognizing gay marriage), while states figure out whether they want to do. That’s a flawed legal theory, The Gays argued, because they can easily show forbidding gays from marrying advances no federal interest, since infertile heteros can marry and gays who cannot marry can still raise children. If DoJ pushes for the hard test, it will run into the issue of whether the Obama administration believes gays can change their sexuality. Yes, really. Because the hard test — used to defend laws that discriminate against certain classes of people, like property or business owners — is hinged upon whether members of the class can leave the class. Which would have DoJ telling the court gay couple that want to be married do not pass this test, since they can just jump to heterosexuality any moment they choose.