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.
Historically, constitutional analysis of discrimination follows a consistent pattern. At one point discrimination is natural; no one thinks to challenge it. A ban on interracial marriage seems obviously justified. Women are excluded from the practice of law because of their “natural and proper timidity and delicacy,” as one Justice wrote in 1873. Homosexuality is deemed a mental disease, as it was by the American Psychiatric Association until 1973.
Later, the discrimination seems less natural and more ideological. Older ideas about segregation or women’s proper roles leave the mainstream for the narrower confines of particular political views. Later still, they seem obviously wrong. Only kooks want to prohibit interracial marriage now, and any justice who based an opinion on women’s natural timidity would be impeached. At some point during this process – after discrimination has stopped seeming natural, but before it seems obviously illegitimate – the Supreme Court steps in to announce that this discrimination is presumptively unconstitutional and must face heightened scrutiny if it is to survive.