It's no secret that in the space of a few short years, states have grappled with what to do about granting marriage rights to lesbian and gay couples. Many have legislation that either offers some rights via a civil union (for these purposes, I'll call those laws "marriage lite" - civil rights that to me are the equivalent of watery beer. Others have attempted to deny any rights whatsoever. Some have legislatively permitted full marriage rights. Others found themselves in court battles that had the same result.

The Defense of Marriage Act - I have to remember that Bill Clinton signed the bill because it seems so against his general core beliefs - attempts an end-run around the full faith and credit guarantees under the Constitution but apparently comforts those states that are unable or unwilling to grant full marriage rights in their own states. Married in Massachusetts and decided to move? Welcome to Georgia but you aren't married there. Got a civil union in California that purports to grant all the state-based rights of a "marriage"? I hope you got great photos of your ceremony but it's not worth the paper it's printed on in scores of states.

The stability and true meaning of the federal constitution's requirement that states respect acts performed in other states is in real peril. If the US Supreme Court can reconcile DOMA with the full faith and credit clause of the constitution and hold that DOMA does not amount to prohibited discrimination, lesbian and gay couples will not be the only people affected.

The real question is what level of scrutiny the Court applies. It is clear that in cases involving racial discrimination, the Court applies "strict" scrutiny which essentially means that the state must show a compelling government interest, typically based on the 14th amendment to the constitution. Challenges to state or federal laws that discriminate on the basis of gender are evaluated under "intermediate" scrutiny, an invention of retired Supreme Court Justice Sandra Day O'Connor. In those cases, the Court generally looks for states to show an "important" government interest in enforcing the law. Most other discrimination cases get the lowest level of scrutiny - a rational basis test where the Court is unlikely to disturb a state's decision so long as it bears some relationship to a legitimate government interest.

If the court were to consider DOMA through the lens of intermediate scrutiny, DOMA should be dead on arrival. The current make-up of the Supreme Court make that possibility remote.

The saddest part of this to me is that the Obama administration is defending DOMA as I write this. President Obama was fairly clear that his religious beliefs lead him to a personal decision that marriage ought to be reserved for opposite sex couples. I don't doubt his sincerity about that belief. Many Americans share the same belief and religion is always front and center as a justification.

The problem, though, is that basing public policy decisions as fundamental as the right to marry the person of one's choice on religious grounds shreds the promise of a government that both respects religious differences but will not favor a set of religious beliefs when crafting public policy. Imagine a law that required all Americans to confess their sins on a regular basis because Catholicism considers it a duty. Even main line Protestants would rightfully bristle at such a requirement. Even a fair number of Catholics would tell the government to mind its own business and leave the requirements of their religion to them.

In an earlier post, I mentioned what most people already know. Barack Obama is a constitutional scholar who taught Constitutional Law at an elite law school. When I finished law school in 1993, it never occurred to me that the current controversy would so rapidly make its way to the US Supreme Court. Perhaps it was the relative youth and focus of lesbian and gay civil rights activists who were dealing with a deadly disease, the almost unbelievable fear of being marginalized if we came out and, except for a few visionaries, thought that the marriage debate was decades away.

I don't think we realized how hard work, honesty about who we are and our current willingness to tell others about our contributions to the success of this country would push these types of issues so much earlier than I would have guessed.

I hope that people who are in favor of DOMA, or are on the fence, or who have a good argument to make on why I should be treated differently on this issue will weigh in. I would like to better understand why this is such a controversy.