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Who will define marriage?

Act still on books, but it will be up to courts to decide

Published: Saturday, Feb. 26 2011 10:15 p.m. MST

Sen. Stephen Sandstrom speaks at a hearing about his proposed immigration house bill on Capitol Hill Friday, Feb. 11, 2011, in Salt Lake City, Utah.

Tom Smart, Tom Smart, Deseret News

Now that President Obama has decided to stop defending the Defense of Marriage Act (DOMA), there are several possible consequences and nearly as many predictions as there are pundits commenting about it.

The bottom line is that the provisions of the Defense of Marriage Act are still going to be enforced. In fact, nothing has really changed at all — yet.

"There are no immediate consequences of this action in term of what the law is," said Michael Cole-Schwartz, who directs media relations efforts for the Human Rights Campaign, which backs same-sex marriage. "The Defense of Marriage Act remains on the books, and it is ultimately up to the courts to make a determination as to its constitutionality."

For two years, Obama's Justice Department has followed the lead of previous administrations and defended the law in federal court. Challenges to the constitutionality of the law have centered on Section 3 — the provision that defines marriage as between one man and one woman.

The reason Section 3 is under attack is best illustrated by an example: A same-sex couple, say in New York, is for state purposes as married as any heterosexual married couple. But, because of DOMA, the federal government treats them as unmarried for purposes of federal taxes, Social Security benefits, pensions and the like.

There are several cases against DOMA working their way through the federal courts. A few are in the First Circuit. A few are in the Second Circuit.

The First Circuit uses a legal standard called "rational basis" to decide the constitutionality of laws that treat people differently based on sexual orientation.

The Second Circuit doesn't have that standard. In fact, it hasn't selected a standard for deciding these cases.

The key in the Obama administration's announcement is that the president and the attorney general have decided the "rational basis" should not the standard.

They instead want to apply a standard called "heightened scrutiny," which is usually applied to race and gender issues. As the legal term implies, it makes it much more difficult for a law about sexual orientation to be found constitutional.

In other words, the Justice Department chose a standard it believes will make DOMA fail.

The Obama administration said it will not defend DOMA in the Second Circuit or the First Circuit cases — even though the First Circuit cases use the easier rational basis standard.

"When you look down the road, I think that it is plausible that challenges to DOMA will be easier, because you have the argument of the administration that classifications based on sexual orientation are deserving of a higher level of constitutional review, and that is likely to be persuasive to the courts," Cole-Schwartz said.

How might Obama's move influence the courts? Jenny Pizer, Lambda Legal's marriage project director, told The Nation magazine: "What the government says usually gets greater weight than what any other party says."

But Richard D. Land, president of The Ethics and Religious Liberty Commission, the public policy agency of the Southern Baptist Convention, thinks it might have the opposite affect.

"One place that this may backfire is that Supreme Court justices are human, too, and they are very jealous of their prerogatives," he said. "They will see this as an intrusion upon their prerogative. I don't think it is making him the Supreme Court's favorite chief executive."

Ultimately, the Supreme Court may decide whether a "rational basis" standard or a "heightened scrutiny" standard will apply all across the nation — effectively deciding the constitutionality of Section 3 of DOMA.

But there is more to DOMA than Section 3's definition of marriage.

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