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DOMA: Stereotyping and Discrimination under Heightened Scrutiny



25 February 2011

On February 23, U.S. Attorney General Eric Holder announced that the President had formally endorsed an ending to the Department of Justice’s defense of the 1996 Defense of Marriage Act (DOMA). The key provisions of DOMA blocked the federal practice of automatically recognizing same-sex marriages that were formed in states where such marriages where allowed, and permitted states to refuse to recognize these marriages from other states. For the first time in America’s history it also gave federal definition to marriage as "legal union between one man and one woman as husband and wife”.

The letter sent by Holder to Members of Congress stated that these provisions are a violation of equal protection under the 5th Amendment. In addition government lawyers have been instructed not to defend the Act in two current lawsuits (Pedersen v. OPM and Windsor v. United States) where challenges are mounted to DOMA’s definition of marriage.

Under Obama’s new policy, law courts should use “heightened scrutiny” to determine whether cases upholding DOMA were doing so under a rationale of sexual discrimination. Holder said that the “President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny". Though legally the executive branch will still enforce the Act, in practice heightened security will mean courts actively assessing whether it shows signs of what Holder called “stereotype-based thinking and animus.”
It is presently unclear when the Supreme Court will implement heightened security. This is where the final word on gay marriage will ultimately need to be determined. However, the change is a promising step towards full recognition of the rights of gays and lesbians, and towards better acceptance and understanding of the existing diversity of sexual orientation in society.


Factsheets on LGBT related issues:

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                                                                                                                    - Kurt Lewin