Alex Blaze

Justice Won't Defend DOMA; Obama Holds Sexual Orientation Discrimination to Higher Scrutiny

Filed By Alex Blaze | February 23, 2011 4:00 PM | comments

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

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. ericholder[1].jpgThat 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."

John Kerry:

"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."

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And here comes the latest shower of Obama apology crumbs. Screw the working class, apologize by catering to the interests of the wealthy and connected while continuing to ignore the real problem, no rights for LGBT's in 28 states and for transfolks in 39 and the Democratic Party's continuing policy of throwing lower and middle class LGBT working families under the bus to protect themselves from having to act like actual leaders. It's the Democratic way.

Let's make sure we remember next year just who's side the Democrats are really on, because it certainly isn't the working class.

I agree with your summary, but not really the solution.

The problem is, who IS on the working class side? Certainly not the GOP. Should we all vote Green? Maybe Tea Party? None are good options, but given the choice between being beaten with a Nerf bat or a real one... Sure, I'd prefer no bat at all, but where is that option? I'm not seeing it, so I vote Nerf. | February 23, 2011 4:40 PM

Ooooooooooh! Aaaaaaaaaaaaaaah! The Hilary Rosen Champagne fund "wrote to the President directly"!!!!! Ya know, as opposed to just passing a note to one of his daughters at school.
Class: can you say "pitiful"?

RE National Stonewall Democrats Valentine: I think I might be able to speak for those of us who, unlike you, don't have our heads up Obama's ass when I say while this is better than nothing, there remains no legal or moral excuse for his still ENFORCING the law while it works its YEARS-long way to the Supremes. As to how much better it is in purely legal terms, I'll wait for "strict scrutiny" of IT by someone whose objectivity I trust as the Obama Nostra have gotten away with playing word games before. For instance, his much vaunted “ban” on “torture” contains, via its application ONLY to "individuals detained in any 'armed conflict'," such a huge loophole that any black ops team could drive a truck filled with “suspected 'terrorists'” through it. Remember Slick Willy? We've got Slick Barry now.

As for NSD's nonsense about his role in the STILL to be actualized repeal of DADT, the closest to any kind of informed, genuine credit he deserves is that he finally got out of the way. In the meantime, suspected gays are still being investigated for possible discharge, the rest are being kept in military closets like some dangerous aliens, the Pentagon is still chasing Dan Choi and others to pay back money he only technically owes them because THEY kicked him out, and Obama, Inc., is still being sued by the ACLU for refusing to use their discretionary powers to give discharged gays the same 100% of separation payments that they automatically give straights. Perhaps NSD should take the "Stonewall" out of their name for awhile until their objectivity comes back to them, and every press release sounds reads like it could have been written by Michelle.

RE Mr. Minter, whom I otherwise admire: he's working so hard to occupy space in the POTUS upper intestine that HRC and NSD might logically protest: "WE got here first!"

Ms Juro , can't we celebrate when there is a victory? I'm tired of the chronic whining by some in the LGBT community. Progress has to start someplace. Let's not always play victim here.

There is plenty that can be done at the state level in the 28 and 39 states to which Juro refers. Gay rights have been moving forward at lightning speed these last few years compared to what there was for a great many years prior.

There is no such thing as a GLBT magic wand to wave and make all inequality go away. Part of the problem is that there does in fact need to be a lot of state and local level work done. Obama can't do it all. We do in fact have a federal system, and the states have lots on the to do list that isn't getting done. Even within the federal level, there are in fact three branches. Obama really showed guts by not waiting for legislative or judicial remedies.

Also, once again, the issue of same sex marriage has put OUR agenda on the front page of all American newspapers, top items on all news casts. All of America hears about LGBT rights, via the marriage issue. This has never occurred with any other issue, no matter how much people worked or wanted to get the media coverage. | February 23, 2011 5:27 PM

@ Drake: WTF are you talking about—"Obama really showed guts by not waiting for legislative or judicial remedies"????

He's still ENFORCING the law. He IS waiting for "legislative or judicial remedies." His "guts" are abnormally small in contrast to both what he promised and the undeserved acclaim he gets.

We're not asking him to "do it all"—we're merely asking him to do all HE CAN—and that's a hell of a lot more than what he's done.

As for your odd "Marriage news is the most news" reach...AS IF this were a competition...subtracting the stories generating by STATE actions on marriage because the military ban is a federal government issue, one would bet stories about the ban over 36 years have done far more to put LGB rights in the news. And, soon, hopefully T rights as well.

What this does Drake, is guarantee that now all the focus at the state level will be on same-sex marriage, probably at the expense of the working class and almost certainly at the expense of transgender people, exactly as we are seeing now in Maryland.

This may be a nice gift for the tiny minority of LGBTs who wish to be married, but it's the worst possible news for those who are still unprotected from discrimination in the workplace, particularly those in the lower and middle classes.

Once again, the Democrats prove that they still don't get it, even after all these years.

So, you go celebrate with your marriage-hungry friends. For the rest of us, gaining our equality in most of this country just got a whole lot harder.

As far as principles are concerned, this is the right thing to do, and Obama should have done it immediately when he became president in January 2009.

But politically, it is worrisome. As I have said before, I hope this is not a political recipe for instant passage of the FMA ... Hopefully, we are far enough down this road for that not to be the slam-dunk for the conservatives that it might have been in earlier years. At last count, presuming states with marriage and/or civil unions fail to ratify, we are only a few states short of being able to block a federal amendment ratification by the states.

It's about damn time! Now if they could find a way to move ENDA too. After all, our groups have done a really shitty job of it!

There's a 50/50 chance that the S.Ct. will rule in favor of heightened scrutinyt for gays, so that explains in part the president's reversal along with other factors like this was likely his real position despite throwing us under the bus before, he sees the direction of history, activism is working, etc. This situation is very complicated, but for now, it is moving in our direction. As Bill Bennet once said- even as he fought against marriage equality- its likely inevitable. The reasons why is that the same arguments that apply to racial equality apply here. THe only thing that has prevented it from sinking is hatred of gays. That's losing year by year. Everyone, including the bigots, kind of know.