As noted in an earlier Amicus post, a key reason given by Attorney General Eric Holder for why the Justice Department will NOT defend DOMA in court is that the administration believes that gays and lesbians should be subject to “some level of heightened scrutiny.”
So what exactly does that mean for the case moving forward? In a nutshell, it means that it will be harder for DOMA to withstand constitutional scrutiny.
Ezra Waldman, a 2005 HLS grad, summed up his thoughts on Towleroad with a great analysis of how the Justice Department’s decision will mean for DOMA and for future cases dealing with gay rights. Below is a short snippet but you can read the whole piece HERE.
“The President has also stated clearly that he believes Section 3 is unconstitutional because the law does not pass heightened scrutiny. The Administration has previously defended DOMA under as rationally related to some legitimate government interest. As we have discussed before, that is the easiest standard to beat. But today, the President has stated that he does not believe such “rational basis review” is appropriate for laws that discriminate on the basis of sexual orientation. Instead, DOMA merits some higher level of scrutiny, a hurdle DOMA cannot pass.”