ALERT: Obama Administration Will NOT Defend DOMA Lawsuits

In a major legal policy shift, the Obama Administration has announced it will NOT defend recent lawsuits challenging the Section Three of the Defense of Marriage Act which prohibits federal recognition of same-sex couples and denies all federal benefits, such as Social Security and health care.

The Department of Justice has determined that DOMA Section 3 is unconstitutional, Attorney General Eric Holder said in a letter to Congress. "Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment."

Holder adds that law mandating discrimination based on "sexual orientation should be subject to a more heightened standard."

The Attorney General concludes: "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination."

Holder' memorandum notes that the Administration is not ending its enforcement of DOMA—only its defense in court. Congress must repeal the statute or a court must find it unconstitutional in one of several pending cases.

The statement:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

This is an incredibly important development. It will impact same-sex marriage laws and discrimination statutes across the country. More to follow ...

Comments

[ERIC]

I'll be Damn,,,he changed his mind!!!! unbelievable!!! fINALLY!!!!

[kevjack]

Amazing News! Rod, you are always at the top of your game.

[Quest]

Bravo President Obama for not supporting DOMA that Clinton put in place (not sure what Bill was thinking at that time). And its good to see a President who can evolve on these issues and not be so Bull headed like we seen time & time again.

[Dalton]

@ Quest:

"Bravo President Obama for not supporting DOMA that Clinton put in place (not sure what Bill was thinking at that time"

Clinton signed DOMA. There was no point in trying to veto the bill. It was passed by about 80+ PERCENT of Congress. Not sure what you think a veto treat would have accomplished if it was easily overriden by Congress.

It was that or a constitutional amendment. Take your pick.

And its not so much bravo but as Eric and Rod noted, a total 180 degree about face. The White House has said for 2yrs they were required to defend all laws. Rod (and many other gay activists and bloggers) said they were not if they believed laws were unconstitutional. And if memory serves, Rod and gay activists/bloggers were slammed by many folks, esp on this blog.

It's a great day to celebrate,but let's not rewrite history and pretend this was the plan all along.

And Quest, it doesn't sound like you were of voting age in 1996. If you were, you would remember it was a very hostile time for gays. If it was this hard to repeal DADT in 2011, you have no idea how radical Clinton appeared to Republicans and many Dems when he said gays should serve.

[Dalton]

Ooops, meant veto THREAT, duh.

[Carlos]

Quest: VP Biden also voted for DOMA. "Not sure what Joe was thinking at that time."

Per Wikipedia, "The bill was passed by Congress by a vote of 85–14 in the Senate[1] and a vote of 342–67."

You want to blame someone, blame Joe and almost the entire Congress. Only a handful of them opposed it.

As it's not about "evolving", it was a legal strategy.

I'm not at all surprised it's quiet in comments. Most black gay folks have sadly not cared about this issue. Many reflexively supported WH and attacked those who said WH did not "have" to defend every law. Now we see indeed the govt does not have to defend every law.

And as Kevjack said, Rod is on it with politics and news. And he also said all along Obama and DOJ could do this. Thanks.

[Diva1961]

I think the president is trying to put in places as many things as he can in case he becomes a one-term president. Granted most could be changed with the next president, but some things will be harder than others once the public becomes comfortable with the changes.
Most of the issues that the public and the legislature had trouble with (with regard to the lgbt community)have changed since Clinton was in office. Some republicans will fight just to fight, but as being seen in the WI union fight the public outcry can change some thoughts.

[Quest]

@ Dalton, in MY PERSONAL opinion it is still a step in the right direction for something initially meant to harm us than help. Therefor i will say Bravo for President Obama for making this decision no matter what the reason is for. And BTW one thing you are correct on is guessing I was nearly not of "voting age" back in 96 (sorry im not the oldest queen here) :)