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.
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.