Emboldened by the pending repeal of the Don't Ask Don't Tell law, President Barack Obama, and his top legal official, have concluded that in two pending cases, the Administration will not defend a federal law that defines marriage as being the union between one man and one woman.

The issues brought up by the Obama administration will likely be similar to what the U.S. Supreme Court would address if it ever takes on a case involving sexual orientation as a class.

The Supreme Court has recognized race, religion, or national origin as having a suspect classification which requires much closer scrutiny from the courts with regard to discrimination.

The key part of the Defense of Marriage Act, passed in 1996, is Section 3, which says that the word 'marriage' means only a legal union between one man and one woman as husband and wife and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

To properly defend the law in two pending cases, U.S. Attorney General Eric Holder, who is advising President Obama, said a significantly higher level of scrutiny is needed.

The repeal of the Don't Ask, Don't Tell law late last year means that the U.S. military officials can no longer dismiss service members for being gay or lesbian. Repeal of that law was cited several by Holder times as a reason for the need for higher level of scrutiny for sexual orientation as a class.

I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same sex-couples legally married under state law, Section 3 of DOMA is unconstitutional, wrote Holder in a letter on Wednesday to House of Representatives Speaker John Boehner.

A New Situation

While the administration has previously defended Section 3, two cases in the Second Circuit Court of Appeals presented a new situation.

Cases in other jurisdictions, outside the Second Circuit, have held that classifications based on sexual orientation are subject to a less stringent level of scrutiny, known as rational basis review.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue, Holder said.

Many of the more recent decisions have relied on the fact that the supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Holder said.

Holder outlined the four considerations that courts are likely to take into account when considering a higher level of scrutiny for a classification and why the Obama administration believes sexual orientation deserves it.

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The administration laid out what it believes are the four points needed to address the question of “heightened scrutiny” as it relates to sexual orientation as a class.“The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation,” wrote Holder. “Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation,” Holder wrote. REUTERS
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Consideration 1: Whether the group in question has suffered a history of discriminationHolder: First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today.Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).iii REUTERS
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Consideration 2: Whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”Holder: Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010). REUTERS
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Consideration 4: Whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.”Holder: Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality).Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives.See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”) REUTERS
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