All during the Smelt brief drama in the summer of 2009, certain former lawyers on the internet kept on saying that the Justice Department didn't have to defend DOMA because Barack Obama had already said that DOMA was unconstitutional. That was untrue; he had only said DOMA was "discriminatory," and the Constitution allows many forms of discrimination.
The Administration, through Attorney General Eric Holder, said today that it sees Section 3 of DOMA as unconstitutional and has instructed the Justice Department to no longer defend that part of the act. (Section 1 is the name, Section 2 says that states don't have to recognize same-sex marriages from other states, and Section 3 says that the federal government won't recognize same-sex marriages.)
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.
More after the jump.
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.
As to what happens now:
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.
That Justice defended the law in trial, as many lawyers said they had the obligation to (since the president hadn't said he thought it was unconstitutional at that point). Fair enough, but just a few weeks ago the Justice Department filed a brief defending DOMA in appeals, something that as far as I know they really had no obligation to do. Has the administration's opinion of the act really changed that fast?
Moreover, what will it take to get the Executive to stop enforcing the law? A federal court has already ruled it unconstitutional and the Justice Department won't defend it. If that's not enough, what is?
Org statements are below.
National Stonewall Democrats:
"Like many Americans, the President has been doing a lot of soul-searching around marriage equality and we're very pleased that he has taken this crucial step toward the ultimate overturn of DOMA," said Michael Mitchell, NSD Executive Director. "DOMA, like Don't Ask, Don't Tell, has been a heavy burden on the LGBT community, as well as blight on the American ideals of liberty, freedom and equality.
"The President campaigned on the overturn of both DADT and DOMA and we're happy to see him working to keep the latter promise like he did the first. While there are some who would say that this move comes late, we counter that this would not be happening at all with a Republican in the White House.
"I speak for all of our members when I say that this is incredibly welcome news."
"DOMA was unconstitutional in 1996, and it's unconstitutional today, and the Obama Administration made the right call to no longer defend it in the courts," said Sen. Kerry. "The Defense of Marriage Act has never been about defending marriage. It's been nothing more than an unconstitutional effort to deny same-sex couples basic rights and protections."
Shannon Minter of NCLR:
"Today's announcement is courageous and history-changing. It is also fully consistent with the practice of past Attorneys General, who have decided that some laws are so blatantly discriminatory that they cannot and should not be defended in court. The President and the Attorney General were absolutely correct to conclude that there can be no 'reasonable defense' of a law intended only to disadvantage and harm some families, while helping none. The President and the Attorney General were also right to conclude that because LGBT people have suffered a long history of discrimination in this country, laws that target people based on their sexual orientation are highly likely to be based on prejudice and should be presumptively considered unconstitutional."
"The President's leadership on this issue has forever changed the landscape for LGBT people in this country. For the first time, the President and the Department of Justice have recognized that laws that harm same-sex couples cannot be justified. This is the beginning of the end, not just for the mean-spirited and indefensible Defense of Marriage Act, but for the entire panoply of laws that discriminate against same-sex couples."
HRC has engaged in an effort to encourage the administration to abandon its defense of the statute for years, including writing to the President directly and encouraging our members and supporters to contact the administration as well.
Under federal law, the Department of Justice must report to Congress its intent not to defend the statute and it is likely that anti-LGBT leaders in Congress will take up its defense.
"Congressional leaders must not waste another taxpayer dollar defending this patently unconstitutional law," said Solmonese. "The federal government has no business picking and choosing which legal marriages they want to recognize. Instead Congress should take this opportunity to wipe the stain of marriage discrimination from our laws."
More. Here's Diane Feinstein, promising legislation to repeal DOMA (like that'll go anywhere in this Congress):
"As a Member of the Judiciary Committee, it is my intention to introduce legislation that will once and for all repeal the Defense of Marriage Act.
My own belief is that when two people love each other and enter the contract of marriage, the Federal government should honor that.
I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now; and it should be repealed."
AFER, which is funding the process against Prop 8 in California:
"This is a huge victory for gay and lesbian couples and removes any doubt that the freedom to marry is a constitutional right for all Americans," said Chad Griffin, AFER Board President. "The U.S. District Court has already ruled marriage to be a right for all Californians, and now the federal government has sent a clear message that it too sees the freedom to marry as a fundamental constitutional right."