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Editorial

Out front on gay rights

President Obama has taken a courageous stand in deciding not to defend the Defense of Marriage Act.

February 25, 2011

The Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriage, deserves to sink into oblivion. That came a step closer to happening this week when President Obama reversed course on the law and instructed the Justice Department to stop defending it in court.

But even more important than the setback to the marriage act itself was the administration's reasoning: Sexual orientation, Atty. Gen. Eric H. Holder Jr. said, falls within the same category as race and national origin under the equal protection clause of the 14th Amendment to the Constitution. Groups within these categories — discrete, insular minorities that historically have been singled out for discrimination — are entitled to special protections; laws that adversely affect them must pass a high bar of "strict scrutiny" to survive court challenges.

Obama set the stage for toppling a panoply of laws, ordinances and practices that have long placed homosexuals at a disadvantage. This includes discrimination in housing, the workplace, adoption laws and the like. The president is not obligated to defend laws that are unconstitutional and thus indefensible.

Generally speaking, top state and national officials should feel obligated to defend laws even when they strongly disagree with them. That's why we took issue with then-Atty. Gen. Jerry Brown for refusing to defend Proposition 8 against a federal lawsuit alleging that it is unconstitutional. But in this case, there is an important difference. Without state officials defending Proposition 8 at the appellate level, the more than 50% of California voters who approved it might have no voice in court. Congress, which passed the marriage act, can hire a lawyer to defend it; proponents of Proposition 8, who were not named in the federal lawsuit, might lack legal standing to continue with the case. The state Supreme Court and the U.S. 9th Circuit Court of Appeals will be deciding that issue of standing over the coming months.

In the meantime, the president has set an important precedent for how his administration will regard existing and future laws that restrict the rights of gays and lesbians. Although Obama has always opposed the Defense of Marriage Act and vowed to overturn it legislatively, he also has opposed same-sex marriage, favoring civil unions instead. Was that his real belief or, as many have suspected, a convenient political platform in a country where gay rights are a hot-button issue? Recently, the president said his position on gay marriage was evolving — a reflection of an evolution that appears to be occurring in many corners of the nation. His directive on the marriage act comes amid transformations in the courts and elsewhere: the repeal of the military's "don't ask, don't tell" policy and court rulings against both the marriage act and Proposition 8. Yet popular votes still tend to limit gay rights; considering Obama's reelection hopes, his stance this week was a courageous one.

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