Most of the reaction to the Obama administration's refusal to defend DOMA has been tepid. It's certainly not an announcement that will lead to the immediate legalization of gay marriage in all fifty states. And sure, someone else can always step in and do the job of defending DOMA in court. Yet to me Wednesday's announcement by President Obama and the Attorney General is significant not so much legally, but symbolically. In my bones I feel the impact of it, and I'm struggling to put into words what I sense is a shift in the moral tide of this country.
Last summer I spent countless hours going over Judge Walker's Prop. 8 ruling so I could blog out a summary of it here. That study impressed upon me how difficult it is to defend the position that homosexual couples should be treated differently than heterosexual couples without sounding like some kind of bigoted, backwater, religious nutcase. Think about it. In order to defend such a position, someone has to take the witness stand and explain from the perspective of hard facts and scientific research that gay couples are less stable, less worthy, and less valuable to society than straight couples. You'd have to show that gay couples make worse parents, threaten the fabric of society, endanger religious freedom, or corrupt the nation's youth. This is not a political rant on a street corner, or a Sunday sermon that quotes a few ripped-out-of-context Bible verses. This is court testimony by an expert witness who must deliver a convincing objective account of the facts of the case, who must stand up to the cross-examination that follows.
Governor Schwarzenegger and the California Attorney General refused defend such a position, and you can understand why. So instead the people who ran the pro-Prop. 8 campaign volunteered to defend it, and look what happened. Four of their expert witnesses were no-shows. Of the remaining two witnesses, one did not have the credentials to be an expert witness and his testimony was deemed unreliable, while the other qualified as an expert witness but gave testimony that was largely irrelevant to the case. Reading between the lines, my guess is that the proponents had so much trouble getting their case together because no self-respecting sociologist, psychologist, historian or university professor who cares about their career and reputation wants to publicly defend the position that gays and lesbians are inferior human beings.
The California Attorney General would later admit reluctantly, when pressed, that he thought Prop. 8 was unconstitutional. I got the impression that he and Governor Schwarzenegger were trying to slip out of having to publicly make that admission, or they were at least trying to be as low-key about it as possible. But this past Wednesday President Obama and Attorney General Eric Holder come out with a formal announcement that they will not defend DOMA. They were not being shy about it. What's more they put their finger directly on the heart of the issue, which is that "classifications based on sexual orientation warrant heightened scrutiny." In other words they don't think it's right to argue for discrimination based on sexual orientation. Just as Schwarzenegger couldn't stomach it, neither can Obama, except Obama calls a press conference to say it. And he's the President.
I can't help but think that President Obama's announcement is somehow, either directly or indirectly, a consequence of what happened with the Prop. 8 ruling. Even if someone else wants to step up and defend DOMA, how do you avoid a repeat of the pro-Prop. 8 case? Where will you get your witnesses? How will you argue the case? What will this do to people's professional or political credibility? I think the Obama administration must have realized all this and now they don't want anything to with the case. And if that realization has hit the highest level of our government, then that is significant indeed. It should only be a matter of time before the repercussions pervade throughout the moral fabric of this country in the coming decade.