On February 23rd this year the DOJ sent a letter to Congress informing them of their intentions regarding current litigation involving DOMA. (The full text of this letter is available here, I will be taking most of my information from within that letter.) This letter informed Congress that in a couple specific cases the DOJ would not be defending the constitutionality of DOMA. This is due to these new lawsuits which are to be heard in Circuits where there is not an established precedent regarding the standard of review when it comes to cases involving sexual orientation.
There are three levels of scrutiny when dealing with cases involving issues related to the 5th and 14th amendments. The lowest level of scrutiny, referred to as rational basis is the current standard used in cases with DOMA so far. Under this standard all that is needed to defend a statute is to show that it serves a rational, legitimate interest of the government. The second level, intermediate scrutiny or sometimes heightened scrutiny though there are some differences between the two. With intermediate scrutiny the law must further a rational legitimate interest of the government, in a way that is 'substantially related to that interest.'1 With heightened scrutiny any intrusion caused by the law must be necessary to further the interest. The final is strict scrutiny and applies in cases that involve fundamental rights, such as free speech and racial discrimination.
As stated before, so far the DOJ has only had to defend DOMA in Circuit courts where there is an established precedent to use rational basis as the level of scrutiny in these cases. The cases that prompted this change from the DOJ are occurring in Circuits where there is no established precedent, which require the DOJ to express which level of scrutiny they believe should be applied to the case. In these cases DOJ has chosen to use heightened scrutiny as the basis for these cases.
The DOJ has come to this choice by following guidelines set forth by the Supreme Court through other cases to help determine if heightened scrutiny is necessary. These guidelines are as follows:
"(1) whether the group in question has suffered a history of discrimination; (2) whether individuals 'exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group'; (3) whether the group is a minority or is politically powerless; and (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' " 2
The DOJ expressed in the letter that it feels sexual orientation falls under all of those, leading to their choice to use heightened scrutiny. Following this level of scrutiny the DOJ has determined in at least one of the cases that they cannot defend the constitutionality of DOMA.
In the letter the DOJ specifically says DOMA will continue to be enforced until such a time that it is overruled by the courts or overturned by the legislature. They will also continue to defend DOMA as they have before in Circuits where rational basis is the precedent.
There is also precedent for the DOJ to refuse to defend laws as they are currently in the specific case mentioned above. Between 2004 and 2010 the DOJ has informed Congress that they will not be defending a statue 13 times. These have varied from election campaign finance laws to pornography laws. 3
1 Wikipedia: Intermediate Scrutiny
2 Justice.gov: Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act
Wow. I didn't know all of this. It was very informative and it made me a bit more aware of what's going on.
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