Weddingbee boards

Unfortunately, there is way less to this than the news articles would suggest.  The Obama administration has declined to defend only one section of DOMA, and only in the Second Circuit (which covers New York, Connecticut, and Vermont). And it proposes to continue to enforce even that section of DOMA anyway. Here is the full text of what it has decided to do.

To understand what is going on, you need to know that DOMA has two major provisions. One (Section 3) provided that the federal government would not recognize a same-sex marriage. The other provided that no state need recognize a same-sex marriage performed in another state or country. Only Section 3 is at issue in the cases the administration declined to defend.

Also, there are two possible standards of review for a discriminatory law, referred to in the decision as the rational basis standard and heightened scrutiny. If the law is subject to the rational basis standard, it can be struck down only if you can basically show that the only way it could possibly have passed was if the entire legislature was completely nuts. Thus, it will be saved if there was any rational justification the legislature could have used, regardless of whether the legislature was actually motivated by that factor.

If heightened scrutiny applies, the legislation can be defended only if you show that the legislature in fact had some nondiscriminatory reason for passing the legislation. Thus, you have to actually look at the legislative history to determine the legislature's purpose.

In several circuits other than the Second Circuit, courts have held that only the rational basis standard applies. In those circuits, the Administration is still willing to defend the proposition that there was a rational basis for passing DOMA.

The Second Circuit, by contrast, has never determined whether a rational basis standard or a heightened scrutiny standard applies. And the Administration was not willing to argue either a) that only a rational basis standard applied, or b) that DOMA would be acceptable under a heightened scrutiny standard.

However, until and unless the Second Circuit strikes down Section 3, the administration can and will go on enforcing all of DOMA. And even if the Second Circuit strikes down Section 3, that decision would apply only to those states that are within the Second Circuit. Thus, the administration would still enforce all of DOMA outside of the Second Circuit, and all but Section 3 of DOMA even in the Second Circuit.