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Actions Speak Louder Than Words: How the Obama Administration Has Worked Behind the Scenes to Advance Marriage Equality

Ultimately, it's the courts that will ultimately make marriage equality the law of the land in all 50 states.

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The Department of Justice has been in court of for the past year, since February of 2011, arguing that classifications based on sexual orientation (they’ve been doing it in the guise of the Defense of Marriage Act) are subjected to “heightened scrutiny.” They should be given a more stringent review.

The government would have to prove that there was an important interest involved, and that this was tailored to that interest. Because of that they argue that DOMA is unconstitutional, but the legal reasoning behind that is the reason that, for example, Ted Olson and David Boies are arguing that Proposition 8 should be struck down [in California].

The day that that DOJ announced that they were taking this position on DOMA, Olson and Boies filed a document in the Prop 8 case saying look, the federal government’s taken this position. This position obviously applies to Prop 8.

That is the missing link to these criticisms of what Obama has said. In all three areas: in his personal preference, in his policy preference, and in his legal dictates for the Department of Justice has taken the position that leads to marriage equality.

JH: Chris, I want to make sure that everyone understands this really clearly. The highest level of scrutiny that the court can apply is to potential infringements on people’s civil liberties. The 14th Amendment says all citizens must be treated equally under the law. What the Obama administration is doing is going into courts and making this argument that this is a 14th amendment issue. Is that right?

CG: Yeah. That’s exactly right.

JH: And that gets to the heart of the matter. There was a Supreme Court case called Lawrence v. Texas , which struck down state sodomy laws as unconstitutional. Is that case the start of an inevitable move toward marriage equality?

CG: There are two different ways that the court could reach marriage equality: either through due process – that you have substantive liberties that are protected as fundamental by our constitution need to be given to all. Ted Olson talks about this a lot. The Supreme Court has ruled 14 times that marriage is a fundamental right. On that grounds, he says, the federal courts should enforce marriage equality.

The other route is through equal protection. When you classify people you view it under one of three areas: either rational basis, which basically means "give us a reason and we let it go as long as it’s a rational reason"; intermediate scrutiny, which says, "you need to give us an important reason," and that’s what used with sex-based classifications; or "you need to give us a compelling reason" -- that’s what is used with raced-based classifications.

What the DOJ has been arguing is that with sexual orientation -- and incidentally also with gender identity -- they’ve made clear in other filings, that some form of heightened scrutiny, either intermediate scrutiny or strict scrutiny should be applied to any classifications. That runs the gamut from DOMA to state marriage amendments to local city ordinances.

JH: I just want to point out on the point of equal protection is that it was actually Justice Scalia in his dissent in Lawrence v Texas who said that when you strike down sodomy laws it would eventually lead to full equality for LGBT people. Prior to Lawrence the idea was that gays and lesbians broke the law in the privacy of their own bedrooms, and were therefore unable to claim equal protection under the 14th Amendment. As soon as those sodomy laws were struck down it was, at least according to Scalia, an inevitability.

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