It was having to decide (because of where the case was brought)what standard test should be applied to discrimination against gay people. These were the first cases where there wasn't already an established test that the Justice Dept. just had to follow. They had to decide what test should apply and they picked heightened scrutiny which this Law can't pass.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=433x617479Suits on Same-Sex Marriage May Force Administration to Take a Stand-snip-
The two lawsuits, however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges,
the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.
That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation.
“Now they are being asked what they think the law should be, and not merely how to apply the law as it exists,” said Michael Dorf, a Cornell University law professor. “There is much less room to hide for that decision.”
James Esseks, an American Civil Liberties Union lawyer helping with one case, said the new suits could be game-changing.
-snip-
Since 2003, when the Supreme Court struck down laws criminalizing gay sex, the legal landscape for same-sex marriage has shifted. Eight states now grant marriage licenses to same-sex couples or recognize such marriages if performed elsewhere. But under the Defense of Marriage Act, the federal government cannot recognize those relationships.
That has raised a crucial question: Is it constitutional for the federal government to grant certain benefits — like health insurance for spouses of federal workers, or an exemption to estate taxes for surviving spouses — to some people who are legally married under their state’s laws, but not to others, based on their sexual orientation?
The Constitution declares that everyone has a right to equal protection by the law. But many laws treat some people differently from others. Courts uphold such policies as constitutional if they can pass a test showing that the discrimination is not invidious.
A law singling out an ordinary class — like owners of property in a district with special tax rates — gets an easy test. It is presumed valid, and a challenge is dismissed unless a plaintiff proves that the law advances no conceivable rational state interest.
But a law focusing on a class that has often been subjected to unfair discrimination — like a racial group — gets a hard test. It is presumed invalid and struck down unless the government proves that officials’ purpose in adopting the law advances a compelling interest. http://www.nytimes.com/2011/01/29/us/politics/29marriage.html?_r=1&adxnnl=1&pagewanted=1&adxnnlx=1298905244-a7+spND/rNylJbzzRA+2ngU.S., in Shift, Sees Marriage Act as Violation of Gay Rights
By CHARLIE SAVAGE and SHERYL GAY STOLBERG
Published: February 23, 2011
WASHINGTON — President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.
Attorney General Eric H. Holder Jr. sent a letter to Congress on Wednesday saying that the
Justice Department will now take the position in court that the act should be struck down as a violation of same-sex couples’ rights to equal protection under the law.
“The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law,” a crucial provision of the act is unconstitutional, Mr. Holder wrote. -snip-
But the new lawsuits were filed in districts covered by the appeals court in New York. That court has no precedent establishing which legal test judges should use when evaluating claims that a federal law violates gay people’s rights.
That vacuum meant that the administration’s legal team had to perform its own analysis of whether gay people were entitled to the protection of a test known as “heightened scrutiny.” Under that test, it is much easier to challenge laws that unequally affect a group, because the test presumes that such laws are unconstitutional, and they may be upheld only if the lawmakers’ purpose in enacting them served a compelling governmental interest.
In his letter, Mr. Holder said the administration legal team had decided that gay people merited the protection of the “heightened scrutiny” test, and that under that standard, the Defense of Marriage Act was impossible to keep defending as constitutional. http://www.nytimes.com/2011/02/24/us/24marriage.html?_r=1
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