Marriage Equality's Tipping Point

COMMENTARY: A “tipping point,” according to Malcolm Gladwell (who wrote the book with that title), is “the moment of critical mass, the threshold, the boiling point.” When future generations look back on Wednesday, February 23, 2011, there can be little doubt that they will see it as such a tipping point in the quest for equality for lesbian, gay, and bisexual people. We still have far to go, but that day is a sure sign that it is only a matter of “when,” not “whether,” the promise of equality under the law will be fulfilled, regardless of one’s sexual orientation.

What hit the most headlines, of course, was the statement of the Department of Justice that it will no longer be defending the so-called Defense of Marriage Act because it has concluded that that law is unconstitutional. What was an even bigger development, however, was the conclusion of the president, the U.S. attorney general, and the Department of Justice that all laws that discriminate based on sexual orientation should be presumed to be unconstitutional.

With the reasoned analysis we should expect from a president who once taught constitutional law and an attorney general who was once a judge, they have concluded that courts should treat antigay laws with suspicion, based on the nation’s long history of discrimination based on sexual orientation, gay people’s relative lack of political power, and the unfairness of discriminating based on such a core characteristic that is unrelated to the ability to perform or contribute to society. As a result, as the attorney general has explained, courts should give “heightened scrutiny” to laws that treat lesbians, gay men, and bisexuals unequally. Under that test, he has continued, courts should strike down antigay laws as unconstitutional unless the government can prove both that those laws’ unequal treatment of gay people is at least substantially related to the advancement of an important government objective and that advancing that objective was the actual reason for the law, not some hypothetical or after-the-fact rationalization.

This is an about-face from arguments made by the executive branch for decades that laws that treat gay people unequally should be presumed to be constitutional and should be upheld if any conceivable argument might be made that they further a legitimate state interest, regardless of whether that was the reason for a particular law’s enactment or not.

Wednesday’s action by the president and the Department of Justice did not suspend DOMA. Same-sex couples who are legally married will continue to have their marriages ignored by the federal government until the courts order otherwise or Congress repeals that ignoble law. But Wednesday hastened the day of DOMA’s demise as well as that of all laws that deny equal treatment based on sexual orientation. The principled stand taken by President Obama and the Justice Department is likely to be very persuasive, even if Congress seeks to step in to defend DOMA or state or local governments urge a different view when other antigay laws are challenged.