This is what Holder said on a Sunday Talk show last week which is today's Queer Quote:
"When you have differentiations on the basis of sexual orientation they should be heightened scrutiny. That being the case, I think that a lot of these measures that will ultimately come before the Court will not survive a heightened scrutiny examination."Holder also answered "Yes" when asked whether he thought it was unconstitutional to discriminate against same-sex couples in marriage.
I think there's really no doubt about whether marriage bans survive heightened scrutiny and there's less doubt that sexual orientation should receive heightened scrutiny. Several judges have ruled that marriage bans do not even survive rational basis review. If the Supreme Court (and the Department of Justice) took that position, that would basically end the marriage equality question once and for all.