Declining to defend a federal law is not unprecedented. Holder was careful to note that the executive branch will continue to enforce DOMA. But Obama’s endorsement of heightened scrutiny matters. If courts agree, gay rights litigation will look very different. Rational basis review lets government defend its laws on the basis of any remotely plausible justification, regardless of the legislature’s actual purpose. Heightened scrutiny directs courts to look to actual motive, not fanciful conjecture. In DOMA’s case, that means focusing on the relevant statements made by members of Congress expressing moral disapproval of homosexuality. Courts will not engage hypotheticals about procreation and childrearing; they will directly confront the issue of whether such views are a permissible basis for discrimination, or whether they are what Holder called “stereotype-based thinking and animus.”
The administration’s position is a strong indication that the attitude of moral disapproval is on the defensive. It is an important milestone in what looks increasingly like irreversible progress toward full social – and legal – acceptance of gays and lesbians.