In some ways the Defense of Marriage Act (DOMA) is the biggest federal barrier to equality for gay and lesbian Americans. It prevents same sex couples who get married in states where it's legal from getting federal rights bestowed on other married couples. Like tax breaks and Social Security benefits when a spouse dies.
So when Attorney General Eric Holder announced that the Obama Administration would no longer defend DOMA, civil rights advocates cheered. Some in the LGBT, notably Geoff Kors of Equality California, have been seering in their criticism of what they say saw as Obama's hypocrisy after promising to be a "fierce advocate" for gay rights in his 2008 campaign.
Less than two hours after that announcement attorneys opposing Prop. 8 were on a conference call with reporters. Conservative Republican-turned gay rights champion Ted Olson hailing the administration's decision -- and deftly blending it into court filings with the 9th Circuit Court of Appeals.
Olson's team wants the 9th Circuit to lift its stay of federal Judge Vaughn Walker's decision striking down Prop. 8 as unconstitutional. That motion was already in play when Wednesday's blockbuster announcement came from the AG. The reason: Olson et al say justice delayed is justice denied -- and that Prop. 8 brands same sex couples in California as "different, inferior and unequal" forcing them to wear a "badge of inferiority".
But legal experts like David Levine of UC Hastings Law School and Katherine Darmer of Chapman Law School in Orange County (who by the way supports same sex marriage) strongly doubt the Appeals Court will lift the stay. Why? Because while the political landscape changes swiftly, courts are more deliberate and cautious -- even the notoriously liberal 9th Circuit. The last thing they want is for the Supreme Court to step in again and slap them down.
But Olson and his partner David Boies are also asking the state Supreme Court to hurry up its schedule for deciding whether California law allows Prop. 8 backers to defend the measure in court since neither the Governor nor the State Attorney General will. As it now stands oral arguments in that legal detour won't beheld before September.