Alex Blaze

Why Didn't the Holder Memo Happen Sooner?

Filed By Alex Blaze | February 25, 2011 3:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Barack Obama, DOMA, Eric Holder, LGBT, marriage, memo

To get an idea of how sudden an about-face the Holder Memo earlier this week was, here's a judge who just heard Justice Department lawyers arguing that DOMA is perfectly constitutional in December, who doesn't know what's up with the case:

U.S. District Judge Jeffrey White has asked the Department of Justice to explain by Monday how it intends to fight a lawsuit by a federal employee in San Francisco who has sued over the government's refusal to authorize health coverage for her wife.

During a nonjury trial in December, a Justice Department lawyer argued that the 1996 Defense of Marriage Act precluded the government from recognizing the marriages of same-sex couples.

But on Wednesday, Attorney General Eric Holder announced that the Obama administration had concluded the 1996 law was unconstitutional.

GLAD also doesn't know what this means for the Gill challenge to Section 3 of DOMA:

The DOJ has not sent a letter to the Congress declining to defend DOMA in toto in the Gill case, so its determination may only apply to the extent the court determines that heightened scrutiny is the proper standard of review for DOMA's constitutionality. No matter what happens, the case will proceed with DOJ as the attorneys for the government defendants.

And from the Attorney General of Massachusetts, whose federalism-based challenge of DOMA got lumped in with Gill:

"I am very pleased that the Department of Justice and President Obama have determined that the federal Defense of Marriage Act (DOMA) is unconstitutional. This is a position that we have held and argued since we filed our lawsuit in July 2009. We brought our case based on a firm conviction that to achieve equality for all married couples in Massachusetts, we need to ensure that all citizens enjoy the same rights and protections under the Constitution. Today's decision is another important victory for the civil rights of same-sex couples and their families, as it now means that DOMA has been declared discriminatory and unconstitutional by a federal judge, the Department of Justice, and the President of the United States. A letter sent today from Attorney General Eric Holder informed Congress that it has the ability to continue to defend these suits. Exactly what that means for our litigation pending in the First Circuit Court will become clear in the next few days."

The reasoning given for this change of course for the Justice Department is that the level of scrutiny for anti-gay discrimination had already been established in other jurisdictions, and that a case in New York required them to decide the level of scrutiny they wanted sexual orientation discrimination held to.

Fair enough.

But the Holder Memo goes beyond describing the level of scrutiny and says that DOMA, in the opinion of the President, doesn't withstand a higher level of scrutiny. Holder says that they just never considered the fact that the President doesn't consider DOMA constitutional until just now that the Second Circuit Court asked about it, but I find it hard to believe that our constitutional law professor in chief just never thought about it until now, especially with all the drama that surrounded the Smelt brief two years ago.

The fact that smart lawyers in jurisdictions outside of the Second Circuit are expecting the Holder Memo to affect their cases makes me think that Obama should have done this earlier, and that the fact that he didn't is based more in politics than it is in the law.

I know lots of people in the community aren't willing to look a gift horse in the mouth. If I, on the other hand, were offered a beautiful gift horse, I'd wonder what I'd do with it, where I'd keep it, how I'd have to clean up after it, and if I was going to be sure to feed it every day.

As French economists say, there's no such thing as a free horse.


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No matter how you carp, the DOMA letter by the Obama Administration is a welcome development. I think that you are rueful about possibly having to give at least a little bit of credit to "Gay, Inc. " whom you love to berate. HRC and Lambda Legal, and other organizations are due at least a bit of kudos, I think, and probably lot more than that.

Do you think that it is in the gay interest to weaken Obama's support? Are we better off with Sarah Palin or Mike Huckabee or Mitt Romney or any of the others picking federal judges with life time appointments, purging the State Department of out gays as was the case by past republican administrations, etc etc etc? Politics is the art of the possible. There is no bad time to receive good news.

Something tells me that if HRC were responsible for this, even tangentially, we'd already have received half a dozen press releases saying that they did it. They're not ones to do something and then not claim credit.

As to your second paragraph, this post isn't about who to vote for.

Somewhat is sure design' d, by fraud or force:
Trust not their presents, nor admit the horse.~ Aeneid, Book 2

"Holder says that they just never considered the fact that the President doesn't consider DOMA constitutional until just now that the Second Circuit Court asked about it,"

I'm not finding this in the letter. Can you show me where he says that?

I'm not going to search through the letter, but here it is from the justice dept. press release:


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.

well that says something very different from what you're claiming, alex. it says the administration has the opportunity to put forward a legal opinion on the question for the first time. Not that they'd "never thought about it" or discussed it before, which is, as you note, a weird claim.

It's dumb to publicly make a legal argument if you have no mechanism for acting on it. they currently have a mechanism, so that's why they waited till now. Pretty simple.

It was delayed because both houses of Congress and the Administration are controlled by bigots.

Repeal of DOMA and passage of ENDA wouldn't have occurred even when Democrats had commanding majorities of both Houses. That's because the WH opposed both and because there are large numbers of Democrat bigots in Congress who side with Republican bigots.

It doesn't matter in the least if they're personal bigots or functional bigots who openly oppose same sex marriage to pander to christian bigots.

Some people continue to mistakenly urge us to vote for bigots like Obama and Congressional Democrats, presumably on the assumption that it's possible to 'reform' the bigots who run the Democrat Party.

That's as likely as Log Cabin's chances of reforming the Republican party, and for the same reason. Both parties are controlled by bigots.

The main difference between them is that the Democrats cover their merde soufflé servings with huge dollops of whipped cream. That doesn't work forever. The 20 million plus voters who deserted the Democrats between 2008 and 2010 don't seem to want a second helping.

I don't care why as much as I care that they did it.

Repeating an old Birch Bayh line: I don't care how late you are to the train, as long as you're there before it pulls out of the station.

This from a man who's authored more Constitutional amendments than any living soul. And the glorious federal Titled acts which expanded sports gender equity. And defeated two bigoted Supreme Court nominees almost single-handedly.

Let's not let the perfect be the enemy of the good, huh? If it had been Pres. McCain-VP Palin we'd be in a mell of a hess.

Smack him around, poke at him for being tardy, but thank him.

Just sayin'.

How bout this: I'll thank him when I'm married and seeking a federal right that is still being denied because of DOMA, which the administration is still defending.

You're pretty young to be THAT bitter.

I've had lots of differences with Alex Blaze and will have many more but in this case, Sutton, I think you're mistaking bitterness for honest indignation. I remember 2008 when self-confessed Obamaholic Michael Crawford accused everyone critical of Obama's bigotry of being 'bitter'. It was a convenient way to dismiss our warnings without discussing their merits but it turns out that those warnings were absolutely correct. It's what Obama does to GLBT folks that's bitter.

Obama's record of sabotaging No on 8 with 'Gawd's in the mix' is a bitter lesson in the foolhardiness and futility of looking for a lesser evil. There is no such thing. If you look at things politically this is either the fifth Clinton administration or the third Bush administration. That true of union busting, the wars to steal oil and bigotry.

Obama endorsed putrid bigots like Rick Warren and Donnie McClurkin by appearing at their events and even inviting Warren, one of the authors of the Ugandan 'Kill a Faggot for Jebuz' law, to his inaugural. Is that one of the things we should be thanking him for?

Obama is the bigot who consistently defended Bill Clintons DOMA and DADT in court until he decided he needed our votes and who led a party that promised, in exchange for the votes of the naive, to repeal DOMA and pass ENDA. Naturally, being Democrats, they were lying and promptly broke their promises despite having commanding Congressional majorities. Democrats, Obama in particular, fear losing the bigot vote they consciously cultivated in 2008.

Obama is the bigot opposed to opposes same sex marriage who appointed fellow bigots Tim Kaine and Leah Daughtry to run the DNC.

The most effective way to build our movement is also the best way to show Obama what we think of his bitter record of betrayal. That is to emulate the 20 million plus voters who deserted the Democrats and Obama last fall. Stay home on election days, November 6, 2012.

Bil, if we didn't have post-mortems, we'd lose half our content on this site. :)

Sarah Vestal | February 26, 2011 5:32 PM

As an IRS Revenue Agent in Marin County, CA (across the GGB from San Francisco), I am wondering about what to do about examination of same sex couples who file a joint Federal tax return? Our previous direct instructions from the top IRS level was to disallow all same sex married filing jointly tax returns based on DOMA. However, now??? If I disallow and the same sex couple appeals my decision to Tax Court, who defends the U.S. position on DOMA?

In my PERSONAL opinion, if it is to their benefit, same sex couples should file their federal tax returns jointly AND quickly amend their prior 3 years of returns to claim joint status on those returns before the statute of limitations runs on amended returns.