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In this paper I intend to explore Eric Holders letter to Speaker of the House John Boehner regarding the Obama Administrations new stance regarding the Defense of Marriage Act. Next, I will explore what strict scrutiny is and the standard of review that has been the basis for decisions regarding same sex marriage. Finally, I will explore what the Department of Justices new stance could mean for the future of DOMA and same sex marriage.

Strict Scrutiny

According to Eric Holders letter, the following must be asked in order to determine if strict scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individuals ability to perform or contribute to society (US Department of Justice, 2011)

Appling this definition, it would appear that those who are gay, lesbian, bisexual, transsexual, etc would fall into a heightened scrutiny class. I would however, like to address each of the points that Holder brings up to clarify why the LGBT community would fall into this class of heightened scrutiny. The first point deals with a history of discrimination. According to the Grand Valley State Universitys history on homosexuality in America, dating back to 1953, President Eisenhower wrote an executive order pro claiming that being gay was a necessary and sufficient

2 reason in itself to fire any federal employee from his or her job. (2011) In 1978, Harvey Milk, an openly gay male city supervisor was assassinated by Daniel White. Even today, the Westboro Baptist Church has made headlines by appearing at funerals with signs that read God hates fags and according to the Milford Daily News, Reverend Jerry Falwell was quoted as saying AIDS is not just God's punishment for homosexuals; it is God's punishment for the society that tolerates homosexuals." (2007) This, by no means, is an exhaustive list but an example of the discrimination that is and has been experienced by the LGBT community. The second criteria that must be met in order to be able to be held under heightened scrutiny is whether the individuals exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group. (Department of Justice, 2011) According to Richard Hortons article on homosexuality and genetics, there appears to be a link between hormones, heightened activity in certain parts of the brain and the sexual preference of the individual (1995). While there is debate about whether or not a person is born gay or it is a choice, the scientific research points to it being in the brain and out of ones control. The third criteria is whether the group is a minority or is politically powerless. It might be sufficient to say that the LGBT community is a minority in the United States, I do not wish to stop there. In my understanding of political power, it is not just the ability to participate in the political process, but also have your voice heard and given credit to. Members of the LGBT community can and do vote. This is not the way that they are politically powerless. Since this country has been founded, there have been laws on the books making sodomy illegal. When this subject was brought before the Supreme Court as it was in Bowers v. Hardwick (1986), the Court found that anti-sodomy laws were Constitutional, even if the act was in the privacy of ones home. The laws that affect the members of the LGBT community do take away their political power due

3 to the widespread homophobia and the rise of the Religious Right. Since the anti-sodomy laws have been in place, there have been other laws that take away the rights of the individuals in the LGBT community. Anti-sodomy laws arent the only ones that are directed towards members of the LGBT community. According to Ranker (2010), they are still unable to donate blood and adopt children. There is also no federal antidiscrimination laws that protect members of the LGBT community in housing, employment, or schooling. The last criteria for establishing heightened scrutiny according to the United States Department of Justice (2011) is whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individuals ability to perform or contribute to society.

Attorney General Eric Holders Recommendation

According to the letter sent from Eric Holder on behalf of the Department of Justice to Speaker of the House John Boehner, the executive branch will no longer defend the Defense of Marriage Act of 1996 (DOMA). Eric Holder and President Obama agree that DOMA, held to strict scrutiny, would fail.