Joe Solmonese is president of the Human Rights Campaign, which works toward lesbian, gay, bisexual, and transgender equality.
As Justice Anthony Kennedy wrote in his opinion in Lawrence v. Texas, which struck down state laws criminalizing intimate gay and lesbian relationships: "Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." The court had upheld such laws just 17 years earlier. Our Constitution didn't change in those 17 years; our nation's understanding of gay people (and sexual orientation itself) did.
Yet, many laws remain that serve only to oppress lesbian, gay, bisexual, and transgender people. The Defense of Marriage Act is one such law. It limits federal recognition of marriage to unions between a man and a woman and permits states to refuse to recognize marriages between same-sex couples from other jurisdictions. As the attorney general wrote in informing Congress that the Justice Department would no longer defend in court the constitutionality of the law's federal recognition portion, it is unconstitutional both because of what it does to same-sex couples and the reasons the government has given for doing it.
First, consider the real-world implications of denying federal recognition to a legally married couple. A worker pays into Social Security his entire life, but his surviving spouse is denied those benefits simply because that spouse is a man. Two women build a life together, but one is a foreign national; because her spouse lacks the right to sponsor her for immigration, the couple is forced to choose between love and country. An employee's wife falls ill, but she cannot take unpaid leave to care for her, because the Family and Medical Leave Act does not cover same-sex couples. The spouses of lesbian and gay people who serve in uniform are excluded from military family benefits.
So the law clearly discriminates—it allows the federal government to pick and choose which marriages it likes and which it doesn't. The question is then whether the government has a good enough reason to do so. In making its determination, the Justice Department concluded that laws that classify people differently based on their sexual orientation should be reviewed more closely by courts—or given "heightened scrutiny." The attorney general laid out clear evidence for that higher level of review: Gays and lesbians have faced a history of discrimination; sexual orientation is not relevant to a person's ability to contribute to society; in the opinion of experts, sexual orientation is something that cannot be changed; and gays and lesbians are politically disadvantaged.
But the law would fail, and has failed, to pass muster under even the most deferential review, called "rational basis," because Congress never had a good reason to enact it. As judges examine its constitutionality, they are forced to acknowledge the elephant in the room—its pedigree as a legislative statement of moral disapproval. The congressional record is rife with anti-gay animus, including the arguments that marriage for same-sex couples is "a radical, untested and inherently flawed social experiment" and that the law represents a "moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality." The Supreme Court has said, time and again, that mere moral disapproval cannot justify laws that discriminate.
The Constitution's guarantee of equal protection is there to protect against the stereotyping and hostility that the Defense of Marriage Act represents. Denying federal recognition to legal marriages does not strengthen opposite-sex couples and only serves to mark same-sex couples with a state-sanctioned imprimatur of second-class citizenship.