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Religion & Law

: Mirror of Justice

DOMA and beyond . . .

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I cannot quite tell what the implications will be of the Obama administration's decision not to defend the Defense of Marriage Act in court.  My understanding is that the administration didn't simply decide that DOMA is a bad law so it shouldn't be defended; the administration decided that discrimination against gays and lesbians should be subject to a heightened standard of scrutiny (rather than rational basis) under the Constitution, and that the traditional definition of marriage qualifies as such discrimination.  It remains to be seen, though, whether this decision by the administration is primarily one of inaction (not going to defend a discriminatory law) or action (advocating for a heightened standard of scrutiny in challenging discriminatory laws).  If the latter course is the strategy, that has some pretty significant implications far beyond DOMA.  Does anyone have a clearer understanding of (or at least some speculation regarding) the way forward from here?  Has this move increased the likelihood that state laws banning same-sex marriage will be found unconstitutional?

Full post as published by Mirror of Justice on February 24, 2011 (boomark / email).

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