Obama To Stop Defending DOMA Cases


Attorney General Eric Holder released a statement saying that President Obama “has concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet [a heightened standard of scrutiny]and is therefore unconstitutional.”


Kate Kendell, executive director of the National Center for Lesbian Rights, tells dot429: “It is difficult to overstate how significant this development is toward assuring that same-sex couples will soon have marriages recognized and respected by the federal government.  This is the beginning of the end of government-sanctioned discrimination when it comes to our relationships.”  


Lt. Dan Choi tells dot429: “It means one thing: we must keep fighting, we must keep suing in the courts and organizing in the streets, for our equal rights. Barack Obama has in fact stated his support for marriage equality in 1996. His current ‘wrestling’ is as unnecessary as it is untenable.”


Brian Ellner, Senior Strategist for HRC’s Campaign for New York Marriage, tells dot429: “Today President Obama ordered the United States Department of Justice to stop defending the so-called Defense of Marriage Act.  It’s an historic move that will provide significant momentum as we push to win the freedom to marry across the country.  In the meantime, loving committed couples can’t marry in New York and our work to win marriage equality here continues.”


Richard Socarides, President of Equality Matters, issued a statement saying: “This is a very significant and welcome development. I commend the president on his bold leadership. It means that the discriminatory and harmful Defense of Marriage Act is on its last legs. The federal government is one big step closer to providing equal rights and responsibilities to legally married same-sex couples. This is an important moment in the struggle for full equality and the President deserves a lot of credit.”


Speaker Christine Quinn of the New York City Council issued a statement saying: “Today is another historic step for equality in our nation. The announcement that the White House and the US Department of Justice will no longer assert the constitutionality of discrimination based on sexual orientation sends a powerful message to all Americans.  I applaud President Obama and Attorney General Holder for their leadership and commitment to equality for the LGBT community. While there remains much to accomplish, we should stop for a moment and be proud that our community has come together to successfully advocate for what is right for America. I thank all of those who worked so diligently to overturn DOMA including Lambda Legal, ACLU, GLAD, NCLR, HRC and Freedom to Marry.   But let me be very clear, we will not stop working until every LGBT American has the same rights and dignity as every other American. Congress should waste neither its time, nor its limited resources trying to protect this discriminatory law.”


Full Statement from Attorney General Eric Holder:


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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