Obama: DOMA Is Unconstitutional — Correct!

President Obama understands the Defense of Marriage Act (DOMA) is unconstitutional and has ordered the Department of Justice to stop defending the law in court.

According to Attorney General Eric Holder, the president determined that DOMA Section 3, prohibiting the federal government from recognizing same-sex marriages, “violates the equal protection component of the Fifth Amendment.” Two pending lawsuits against the provision exist now, and Holder notified House Speaker John Boehner Wednesday that the Justice Department will not defend them.

The law remains in effect, though, as only “an act of Congress or a final finding by the judicial branch,” could actually overturn it. Nonetheless, Obama’s decision changes the vector of the legal cases considerably, because the administration believes that five justices of the Supreme Court, including Anthony Kennedy, the swing vote, would find the major components or most of DOMA invalid if the federal government withdrew its arguments in defense of it.

Obama has long — and justly — been criticized for continuing to defend DOMA. His announcement Wednesday “stunned and delighted gay-rights activists.” Even so, Andrew Sullivan pointed out that the president hasn’t exactly endorsed gay marriage yet. White House spokesman Jay Carney said Wednesday that the president is still “grappling” with the issue, and while he believes the Defense of Marriage Act is “unnecessary and unfair,” there has been “no change to how Obama views gay marriage itself.”

The White House statement isn’t comforting to the homophobes and zealots at the evil American Family Association where an official said the DOMA decision is,

a wake-up call to all conservatives that fundamental American values regarding the family are under all-out assault by this administration.”

Let’s shout it out loudly! YES! Fundamental American values regarding the family are under all-out assault by this administration.

And, this assault is necessary as “fundamental American values regarding the family” are provincial, quaint, discriminatory, mean, evil, harmful, destructive, demeaning, bigoted… In this light, let’s toss out those awful “fundamental American values regarding the family!”

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

WASHINGTON – 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.


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