The NY Times has made public a major angst producing question that looms before the Justice Department: whether and how to defend the constitutionality of DoMA in a circuit where there is no precedent as to the level of scrutiny required for sexual orientation classifications. In both the First and Ninth Circuits, DoJ can point to precedent developed in military cases that only rational basis review applies to Equal Protection Clause challenges to discrimination based on sex/o. Seeming simply to defer to precedent has been how the Obama administration has sought so far not to take a definitive stand on whether barriers to same-sex marriage violate the Constitution. That option doesn't play in the Second Circuit, however -
Mr. Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal [DoMA]. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose suits seeking to strike the law down as unconstitutional.
[Two new 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....James Esseks, an American Civil Liberties Union lawyer helping with one case, said the new suits could be game-changing.
The Obama legal team has not yet decided what path to take on the lawsuits, according to officials who spoke on the condition of anonymity about the internal deliberations. But the Justice Department must respond by March 11. The debate has arisen at a time when Mr. Obama has signaled that his administration may be re-evaluating its stance [and that his views on marriage rights “are evolving.”]
“I have a whole bunch of really smart lawyers who are looking at a whole range of options,” Mr. Obama said, referring to finding a way to end the Defense of Marriage Act. “I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible.”
... [U]nder the Defense of Marriage Act, the federal government cannot recognize [same-sex marriages]. 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?...
Justice officials have argued that the marriage act is justified, under [a rational basis] standard, by a government interest in preserving the status quo at the federal level, allowing states to experiment. And in its brief appealing the Massachusetts ruling, the department stressed seven times that a “binding” or “settled” precedent in that circuit required the easy test.
But for the new lawsuits, no such precedent exists. The Obama team has to say which test it thinks should be used. Courts give a class the protection of [heightened scrutiny] if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it...