Even more important than his conclusion that Section 3 violates the Constitution, Holder also argues that courts should apply "heightened scrutiny" to classifications based on sexual orientation. This also represents a reversal from recent DOJ arguments. When courts apply heightened scrutiny, they are less deferential to governmental justifications for discrimination. This standard could potentially invalidate numerous laws that discriminate against gays and lesbians.
Social Movements
It is important to note the role that social movement activity has played in causing this shift in policy. LGBT groups have been the most vocal in their criticism of policy choices by the Obama administration. I previously have written on this subject.
Social movements are essential to social change. While many liberal organization -- particularly, traditional civil rights groups -- have never publicly criticized the Obama administration, LGBT group have demanded better results and swifter action in a host of areas. Apparently, their advocacy has paid off.
It remains unlikely that race-based civil rights groups will pressure the Obama administration to take more progressive stances on issues relevant to poor persons of color. So long as most persons of color remain highly supportive of Obama, these groups have will have no incentive to demand more substantive justice. Pity.
