I understand having to defend the law as the executive branch. I can understand why the Obama administration decided to defend DOMA, though they could have decided not to. What is a betrayal is that for the second time in a week or so we have the rational basis test being advocated as a test for laws discriminating against gays.
http://www.americablog.com/2009/06/obama-justice-department-defends-doma.htmlGays don't deserve same scrutiny in court that other minorities get
Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above — and as evidenced by the fact that plaintiffs have married in California — DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental — in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification.
Argues Republican position on how judges should review cases
DOMA therefore must be analyzed under rational-basis review. Under the highly deferential rational basis standard, moreover, a court may not act as superlegislature, sitting in judgment on the wisdom or morality of a legislative policy. Instead, a legislative policy must be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that the Congress itself did not advance or consider. DOMA satisfies this standard.
end of quote
This isn't just about DOMA and DADT (the other policy the administration defended in this manner); it is about every single, solitary, anti gay law that is now or ever will be passed by any legislature anywhere at any time. Mississippi decides gays should be banned from living within 1000 feet of children, this argument will be used to uphold the law. Utah decides that gays should pay more taxes than straights, this argument will be used to uphold the law. North Carolina decides gays can't be employed as teachers, this argument will be used to uphold the law. Rational basis actually means no basis at all. It renders the 14th Amendment null and void as to gays now and forever. This defines betrayal. It is one thing to defend these laws, it is quite another to make this argument while doing so. It leaves open the question, does Sotomayor believe in this argument?
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