02.23.11

Obama Drops Gay Marriage Bomb

President Obama shocked gay rights activists and opponents alike Wednesday, announcing that the Department of Justice will no longer defend the Defense of Marriage Act limiting same-sex marriage. Eve Conant and Daniel Stone report on the fallout.

President Obama shocked gay rights activists and opponents alike Wednesday, announcing that the Department of Justice will no longer defend the Defense of Marriage Act limiting same-sex marriage. Eve Conant & Daniel Stone report on the fallout.

On Wednesday, about an hour after the Justice Department announced it would no longer be defending the Defense of Marriage Act that limits same-sex marriage across state lines, White House Press Secretary Jay Carney was peppered with questions from stunned reporters.

The president’s view on the constitutionality of the law had changed, Carney said. But Obama’s personal views on the legality of same-sex marriage were still evolving. “The president is obligated to enforce the law,” Carney said, but he would no longer defend it in federal court.

The biggest legal battlegrounds of the gay marriage debate are currently Massachusetts and California, where over the past year, supporters and opponents have duked it out over Proposition 8, the 2008 ballot measure which stripped Californians of gay marriage rights. The legal defense team that had been fighting for gay marriage in the Golden State was also surprised and pleased by today’s decision.

Theodore Olson and David Boies, the legal power duo behind the California gay marriage trial, spoke to reporters today about the case, with Olson saying he expected that it could expedite the case, which has been tied up in appeal. Public opinion, and now the administration’s opinion, he said, was moving swiftly in their favor. “No one could have predicted this would move this fast but we’re very gratified by it.”

“We’ve obviously been pushing for this for a long time, but we didn’t really have any idea it was coming, and when,” says a spokesman for the D.C.-based Human Rights Campaign.

Today’s decision, Olson went on, “may induce the ninth circuit to respond more quickly to our request that the stay [barring the issuance of marriage license as the courts resolve the issue] be lifted.” The current situation, said Olson, is one in which gay Californians are treated as “different, inferior, and unequal,” and must live with a “badge of inferiority.”

Brian Brown, president of the National Organization for Marriage, which has successfully fought gay marriage advances in several states, tells The Daily Beast that “if Olson and Boies think this advances their case they are living in an alternate reality.” Brown also said, now that that the  DOJ has stepped aside, he expects Congress to weigh in on defending traditional marriage in all the ways he says the administration has failed to. “The administration has failed to live up to its constitutional duty, and we expect Congress to be a much stronger defender of DOMA in current and upcoming cases.” Brown said there were some five DOMA-related cases currently in the courts, and he expected the House to weigh in on all of them, including what gay advocates consider a leading and well-crafted case in Massachusetts, Gill v. the Office of Personnel Management.

In some ways, the decision serves those who oppose gay marriage, insists Maggie Gallagher, chairman of NOM, in an urgently issued statement. “On the one hand this is a truly shocking extra-constitutional power grab in declaring gay people are a protected class, and it’s also a defection of duty on the part of the President Obama,” she wrote. “On the other hand, the Obama administration was throwing this case in court anyway. The good news is this now clears the way for the House to intervene and to get lawyers in the court room who actually want to defend the law, and not please their powerful political special interests.”

It’s unclear how the decision may affect individual states. Boies predicts that states will have to determine what to do with their own laws that enhance the federal DOMA law, commonly referred to as mini-DOMAs or super-DOMAs—which usually go further than the federal law to provide extra restrictions against gay couples. Boies says he hopes states will re-examine their approach to gay marriage, “without the necessity of litigating each provision state by state” given that, he says, the “overwhelming” evidence “is clear that these discriminations are unconstitutional.” He said that laws barring gay marriage “serve no purpose for society and impose severe damages on gay and lesbian citizens and their children.”

Pro-gay marriage groups were stunned by the DOJ’s decision midday Wednesday, and still working out the legal ramifications of the decision, from how this will affect mini-DOMAs to the impact on current legal cases. “We’ve obviously been pushing for this for a long time, but we didn’t really have any idea it was coming, and when,” says Michael Cole-Schwartz, a spokesman for the D.C.-based Human Rights Campaign. The White House reached out to several top same-sex marriage groups to offer a heads up, but only about an hour in advance.

This really is a rare and extraordinary step,” says Cole-Schwartz. “It’s historic to not defend this law and to call it unconstitutional.” But, warns NOM’s Brian Brown, those who are celebrating “are getting way ahead of themselves.”

Eve Conant is a Newsweek staff reporter covering immigration, politics, social and culture issues.