Obama’s pulling the plug on the Justice Department’s defense of DOMA ends a long-running charade that had DOJ lawyers “defending” the statute while refusing to make arguments that political higher-ups in the department deemed “unreasonable.” For instance, as Attorney General Holder’s letter admits, the department had already deemed legally undignifiable the argument that heterosexual marriage serves a procreative function necessary for an ordered society, so the AG and the White House instructed Civil Division lawyers simply not to advance that highly credible argument because, in the view of political appointees, more modern social science did not bear it out.
In other words, while the DOJ was nominally defending the statute, it was, as a result of political interference, already taking a dive. It was the sort of thing that a Republican administration would have been excoriated for. Today’s announcement at least has the advantage of admitting what was already the case.
What puzzles me, however, is White House press secretary’s Jay Carney’s suggestion at today’s presser that President Obama is still “grappling” with the gay-marriage issue. If today’s letter from the attorney general to Congress is any indication, the administration has now fully committed to the idea that it is unconstitutional to deny marriage benefits to homosexuals. According to the letter, it is the administration’s position that discrimination against homosexuals is subject to strict scrutiny under the Equal Protection Clause and that all sorts of proffered rationales not borne out by “modern social science” — such as the procreative function of marriage — are categorically unreasonable or simply moral bigotry.
The administration’s analysis of DOMA leaves little left to decide on the question of gay marriage. Let there be no doubt, Mr. Carney, President Obama has declared his support for gay marriage, at least as a constitutional matter. And since that constitutional analysis is really policy dressing itself up as law, I think we can guess where he is on the policy question, too.