Before signing the DADT repeal this morning, President Obama spoke with The Advocate's Kerry Eleveld about what's next for expanding equality in America.
While you should read the whole thing, I want to highlight two sections. The first is an area with which once-Professor Obama is well familiar -- the degree of scrutiny which courts should apply in reviewing legislation which discriminates on the basis of sexual orientation. There's a sliding scale under current constitutional theory, where race-based discrimination receives strict scrutiny (legislation must be narrowly tailored to fit some compelling governmental purpose), gender-based discrimination received intermediate scrutiny (must be substantially related to some important governmental purpose) down to rational basis, the lowest level of scrutiny, for which legislation need only been plausibly tied to some legitimate governmental purpose.
Where sexual orientation fits in this continuum is still up in the air, with consensus forming around a "rational basis plus" approach, where legislation motivated by animus towards an unpopular minority is basically seen as constitutionally forbidden. And that's where the President seems to be leaning:
I know one of the things that people were interested [in]—especially gay and transgender Americans—was passing employment nondiscrimination protections. But looking forward, it looks like most legislation, pro-LGBT, will be stalled in Congress. So as you look to much of the action that’s going to be happening in the courts, do you think that gays and lesbians and transgender people should have a heightened scrutiny status?
Before I answer that question, let me just say there are still a lot of things we can do administratively even if we don’t pass things legislatively. So my ability to make sure that the federal government is an employer that treats gays and lesbians fairly, that’s something I can do, and sets a model for folks across the board. Our implementation…
But DOMA, of course, is one of the…
I understand. Our changes on hospital visitation is something that didn’t require legislation but has concrete impacts, making a difference in people’s lives as we speak.
So I want to continue to look for ways administratively, even if we’re not able to get something through the House of Representatives or the Senate, that advances the causes of equality.
With respect to the courts and heightened scrutiny, I think that if you look at where Justice Kennedy is moving, the kind of rational review that he applied in the Texas case was one that feels right to me and says that—even if he was calling it “rational review,” is one that recognizes that certain groups may be vulnerable to stereotypes, certain groups may be subject to discrimination, and that the court’s job historically is to pay attention to that.
And so I’m not going to engage in—I’m not going to put my constitutional lawyer hat on now, partly because I’m president and I’ve got to be careful about my role in the three branches of government here. But what I will say is that I think that the courts historically have played a critical role in making sure that all Americans are protected under the law. And there are certain groups that are in need of that protection; the court needs to make sure it’s there for them.
But will the President continue to defend discriminatory laws like the Defense of Marriage Act in court? Maybe not:
I would distinguish between things that should get done and I fully support but may still be stalled with a Republican-controlled Congress—or Republican-controlled House of Representatives that's not inclined to go there, versus things that can happen in society at large.
I have been struck—let me take the former—repealing DOMA, getting ENDA done, those are things that should be done. I think those are natural next steps legislatively. I’ll be frank with you, I think that's not going to get done in two years. I think that's—we’re on a three- or four-year time frame unless there’s a real transformation of attitudes within the Republican caucus....
What about not defending DOMA?
As I said before, I have a whole bunch of really smart lawyers who are looking at a whole range of options. My preference wherever possible is to get things done legislatively because I think it—it gains a legitimacy, even among people who don't like the change, that is valuable.
So with “don't ask, don't tell,” I have such great confidence in the effective implementation of this law because it was repealed. We would have gotten to the same place if the court order had made it happen, but I think it would have engendered resistance. So I’m always looking for a way to get it done if possible through our elected representatives. That may not be possible in DOMA’s case. That's something that I think we have to strategize on over the next several months.
I will note before what I have in the past: if DOMA violates the Constitution and is indefensible before the courts, that's because of the discriminatory nature of DOMA itself and has nothing to do with the numbers in Congress. While its recent briefs defending DOMA have not been as offensive as earlier ones, DOJ has yet to call for what the President acknowledges above: recognition that legislation which discriminates against gays merits extra scrutiny.
Early next month, DOJ will file its appellate brief regarding the Massachusetts decision which struck down parts of DOMA. Let's see what they say now.
See also jpmassar's diary regarding the interview.