Monday, February 14, 2011

New York Times Calls on Obama Administration to Stop Defending Discriminatory "Defense of Marriage" Law

And speaking of the Obama administration, and  leadership, and human rights (I'm keying off what I've just said about the President's response to the Egyptian revolution): the New York Times today calls on the Obama administration to stop defending the indefensible Defense of Marriage Act.  As the Times editorial points out, this law denies to married same-sex couples federal benefits accorded to married couples of the opposite sex.  It is, on the face of it, discriminatory, because it fails to pass the threshold test distinguishing prejudice and discrimination from justifiable non-prejudicial distinctions between one group of people and another: it treats those in same-sex marriages as if their marriages do not have real legal status solely because the two members of a gay marital union are of the same gender.

And while doing this--while advancing no other cogent reason for making a distinction between legal same-sex marriages and other legal marriages--it maintains that it is favoring the latter in order to "encourage responsible procreation."  When no empirical evidence at all demonstrates that legally permitted same-sex marriage inhibits or prevents the procreation of opposite-sex couples.  And when no laws exist requiring opposite-sex couples to promise to procreate as a precondition for marrying.

The Times' conclusion: 

On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry.

By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so. If conservatives in Congress want to enter the case to argue otherwise, so be it. 

And I agree.  It's about leadership.  And it's about human rights.

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