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Religious Liberty and the Defense of Marriage Act

Last week Attorney General Eric Holder and the Obama Administration announced that the Justice Department (DOJ) will no longer attempt to defend Section 3 the Defense of Marriage Act (DOMA) (which defines “marriage” as between one man and one woman and “spouse” as a member of the opposite sex) from challenges in states that recognize gay marriage. This is a decided victory for those who support the cause of civil gay marriage. Previously, the federal government defended DOMA, so this reversal of position came as a surprise. It is important to wade through the legal arguments and determine the legal reasons that led to the current position and what this means going forward.

There are two cases in the 2nd Circuit which are challenging the constitutionality of Section 3 of DOMA – a case from New York (Windsor v. U.S.), and one from Connecticut (Pederson v. OPM). Gay marriage is legal in Connecticut and is recognized, but not performed, in New York. The DOJ defended DOMA in jurisdictions where the courts decided that government only needs to have a rational basis justification to enact laws that discriminate against homosexuals. In short, a rational basis justification only requires means the government to formulate a plausible justification for a particular law. Most laws are held constitutional under this standard. The aforementioned cases are different, however, because the 2nd Circuit has made no decision on whether homosexuals are a protected group, which would require “heightened scrutiny” on the part of the Court in judging whether discriminatory laws are permissible against gays. Heightened scrutiny has been defined by the Court as “a tenable justification describ[ing] actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.   These cases would require the DOJ to formulate their own beliefs about what standard should be used when it is found that a law discriminates against homosexuals, whether to use rational basis, as some jurisdictions have, or to use heightened scrutiny. Based on its analysis, the DOJ believes that laws that discriminate against homosexuals should receive heightened scrutiny.

The DOJ came to this conclusion after its own analysis of the question, based on the standard for heightened scrutiny provided by the Supreme Court. While the Supreme Court has made no definitive ruling on what level of scrutiny should be accorded laws pertaining to homosexuals, the DOJ believes that heightened scrutiny is the right answer. There are four questions that must be considered for heightened scrutiny to apply: (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.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985) (quoted from Attorney General Eric Holder’s letter to Speaker of the House John Boehner). The DOJ believes that homosexuals fit these criteria. First, homosexuals have suffered a history of discrimination. Second, the DOJ admits that there are no visible characteristics, but it cites social science research that supports the finding that homosexuality is immutable and cites to the recent debate on Don’t Ask Don’t Tell to support the proposition that the Executive Branch believes that people should not have to hide their sexual orientation. Third, the Executive Branch believes that homosexuals are politically powerless despite some of the gains that gay rights activists have made lately. As a comparable example, the DOJ cites to the fact that women were deemed politically powerless after the passing of the 19th Amendment and Title VII. Finally, the government supports the proposition that being gay does not inhibit anyone’s ability to contribute to society.

In light of these factors, the DOJ feels that they can no longer defend DOMA as it applies to the states that legally recognize gay marriage. The DOJ will continue to defend DOMA in cases that apply to the federal government. The Obama administration is construing this as a federalism issue, giving states the right to determine what marriage is without the interference of the federal government. However, this is a victory for gay rights activists, as the Executive Branch has essentially said that it will stay out of the fray at the state level for now. However, there is still no answer to the question of whether homosexuals have a right to civil marriage (or even at what level of scrutiny laws against them should be judged). That answer will probably have to wait until the Supreme Court decides the matter in the future.

Naturally, there has been criticism of the DOJ’s decision from those who believe that civil gay marriage should not be allowed. There has also been criticism of this decision from those who support civil gay marriage. Adam Winkler, a law professor at UCLA believes that this decision could have ramifications in future presidencies. The Executive Branch has a long-standing tradition of defending the constitutionality of legislation, even if the legislation is not supported by the current administration. Prof. Winkler believes that the DOJ’s decision will allow future Presidents to selectively defend statutes. While this is a legitimate criticism, it is not a substantial one. This legal situation is sufficiently unique and most likely could not be cited as support for future administrations, especially considering the fact that the Obama administration itself will continue to defend DOMA in certain jurisdictions and at the federal level.

Despite that minor criticism, the DOJ’s decision is also a victory for those who believe that churches should not be imposing their beliefs on society through the legislation of personal morality. Regardless of how you feel religiously about homosexuality and homosexual activity, there is very little justifiable reason to discriminate against gays by withholding civil marriage from them. Allowing gay marriage does not demand that gays actually get married. Therefore, if anyone thinks that homosexuality is a sin, then they should resolve to minister to those in need, instead of using government force to cajole people to live by the dictates of their conscience. Furthermore, it is not the government’s job to uphold Christian morality. Every Christian should be upholding their morality – first in their own lives, and then within their circle of influence. If we as Christians truly believe in the power of God, then we should be willing to do things His way. Instead of trying to make people moral, we should be introducing them to the only Power that can help them to be moral. And that introduction should not come in the form of a fine or arrest warrant. The decision by the DOJ today is a step in the right direction. This type of decision protects not only the rights of homosexuals, but also protects the rights of those who disagree with homosexuals as well.


Jason Hines is an attorney and doctoral candidate at the J.M. Dawson Institute of Church-State Studies at Baylor University. He received his JD from Harvard University.

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