Injustice dismantled: Welcome to a new world aborning

By Sue Hyde, Director of Creating Change, National Gay and Lesbian Task Force

We all breathed sighs of relief and gratitude when President Barack Obama and Attorney General Eric Holder announced that the shamefully discriminatory Defense of Marriage Act (DOMA) will not be defended by the U.S. Department of Justice. At last, the Department of Justice lives up to its name by embracing us! At last, President Obama takes a strong stand against marriage discrimination! While our president evolves, the world spins forward.
Yesterday’s administration action builds hope and power, inspiring us to strive to do more to dismantle injustices wherever they skulk and skitter and diminish our lives and the lives of sisters and brothers who bear burdens of social and political opprobrium. We queerfolk will not be strangers to the law nor outcasts in legal and political wildernesses, nor will we tolerate or accept the casting out of other denigrated peoples: immigrants, low income families, women in need of abortion services, young people securing their futures through means other than joining the military.

While we celebrate, let’s remember that DOMA still has the force of law. DOMA is not yet undone. Sabers rattle in Congress to mount its own defense of this indefensible law. The right-wing calls for a put up and show up offensive to preserve and protect DOMA. Tick tock. How long before DOMA is struck down by the land’s highest court; or even better, repealed by Congress? We are not lulled into silence by the apparent inevitability of a complete repudiation of DOMA and will engage when and where we can and must to drive the stake through the heart of this vampire.

It was ever thus.

Court decisions and political actions that benefit despised minorities often provoke intense and rough-and-tumble public debate, political backlash, and, sometimes, new rounds of antagonistic constitutional amendments. Witness: Roe v. Wade; Brown v. Board of Education; Goodridge v. Department of Public Health; and on and on. We are relieved and grateful, but we are not relaxed. Our voices, our actions, our power will all be needed to ensure that DOMA is undone, that federal constitutional amendments to enshrine it in our foundational document are defeated, and that the right of same-sex couples to marry proliferates throughout the states. Hello, Maryland and Rhode Island and New York! Hang in, Iowa and New Hampshire!

The less expected and more far-reaching aspect of yesterday’s announcement is this: the administration concluded that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.” Holder cited DOMA as one example of a law failing to meet the standard and, thus, not passing constitutional muster.

Heightened scrutiny? Is this a TSA advisory? No. Neither is it increased parental supervision of children, as my son suggested upon our daughter’s departure for college that he would be “under a heightened level of scrutiny.”

Heightened scrutiny refers to the way that courts analyze laws that treat groups of people differently. DOMA is a discriminatory law that treats same-sex couples differently from opposite-sex couples. If we are legally married to our same-sex partner, we are disqualified from over 1,000 rights and benefits under federal law. Obama and Holder have declared their opinion that DOMA should be analyzed with heightened scrutiny because they suspect (and so do we!) that DOMA was enacted out of bias towards same-sex couples. The government of the United States, a.k.a. the Department of Justice, must prove that the discrimination against same-sex couples advances an important government goal. The right-wing ideologues in Congress may choose to make that case, but Obama and Holder? They’re not having it any more, or at least in relation to DOMA.

So, what does the heightened scrutiny aspect of the announcement mean? In real terms, the president and the attorney general acknowledged what we know in our daily lives: we are subjected to discrimination based on animus and hostility to our very queer selves, and further that laws codifying, upholding and enforcing discrimination are unconstitutional. Friends, it’s the beginning of the end of laws and public policy that hold us captive by diminishing our lives and robbing us of basic human dignity.

Welcome to a new world aborning.