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February 25, 2011

"But the headlines missed the technical but important note in Holder's announcement: the Obama administration believes that any law affecting lesbians and gay men deserves "heightened scrutiny" by the courts.

"The Obama administration doesn't get to decide the standard of review; that's the job of the federal courts. But having the government argue that courts should be suspicious if lesbians and gay man are treated differently than heterosexuals is extremely significant. As Jenny Pizer, Lambda Legal's Marriage Project Director, puts it, "what the government says usually gets greater weight than what any other party says" in federal court. And since those are, basically, the arguments against treating lesbians and gay men equally under the law, the Holder/Obama announcement will affect every gay- and lesbian-related court claim about government treatment, whether that's in the military, in federal offices, in marriage or in schools, from now on."