by Marc Ambinder
Wednesday, February 23, 2011 | 12:47 p.m.
President Obama believes that the Defense of Marriage Act is unconstitutional and will no longer defend the 15-year-old law in federal court, the Justice Department announced today.
The decision, which stunned and delighted gay rights activists, means that the administration will withdraw its defense of ongoing suits in two federal appeals circuits and will leave it to Congress to defend the law against those challenges. It will remain a party to the lawsuits. The law itself remains in effect.
DOMA, signed by President Clinton in 1995, allows states not to recognize same-sex marriages preformed in other states and provides a federal definition for “marriage” that exempts same-sex couples.
Attorney General Eric Holder said that Obama had decided to subject classifications based on sexual orientation
to a “more heightened standard of scrutiny.” That means that the federal government no longer believes that there is a “rational basis” for discriminating against gays.
“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,” Holder said in a statement.”
He said that Obama also concluded that Section 3 of DOMA, which defines “spouse” as an member of the opposite sex, “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.”
Holder notified Congress of the President’s decision. Members can decide whether to pursue their own challenges.
The decision means the Justice Department will cease to defend two suits brought against the law. The first, was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services began last May U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.
District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend any law that was on the books, reasoning that Congress had the ability to overturn the law, and Justice entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the First Circuit Court of Appeals on Jan. 14.
The second suit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Second Circuit, which has no established standard for how to treat laws concerning sexual orientation.
President Obama – acting upon the recommendation of Attorney General Eric Holder – decided that discrimination on the basis of sexual orientation should be subject to a more heightened standard of scrutiny, so Section 3 of DOMA did not past the test and was unconstitutional. The Department subsequently decided to drop the case.
The President has won favor with the gay community recently by pushing for and wining a repeal of the military’s “Don’t ask, don’t tell,” policy, which was passed during the lame duck Congress in December. At that time, he reiterated his support for repealing the DOMA, passed under President Clinton in 1996, but did not take further steps toward repeal.
But the administration has hinted that its own legal strategy was evolving. According to an administration official, Robert Bauer has been reviewing the legal landscape since he became White House counsel in 2010. As the Justice Department noted today, the 15 years since Congress passed the act, the Supreme court has invalidated laws criminalizing gay sex, lower courts have ruled DOMA unconstitutional, and Congress agreed to abolish the ban on gays in the military.
The announcement today does nothing to the law directly. That would take an act of Congress or a final finding by the judicial branch, probably the Supreme Court. But it changes the vector of the legal cases considerably. Privately, the administration believes that five justices of the Court, including Anthony Kennedy, the swing vote, would find parts of most of DOMA invalid if the federal government withdrew its arguments that the law was unconstitutional.
A spokesperson for the Human Rights Campaign, the largest ray rights advocacy group, said it was notified just after 11:00 am ET this morning.
“This is a monumental decision for the thousands of same-sex couples and their families who want nothing more than the same rights and dignity afforded to other married couples,” HRC’s President, Joe Solmonese, said. “As the President has stated previously, DOMA unfairly discriminates against Americans and we applaud him for fulfilling his oath to defend critical constitutional principles.”
HuffPo has the letter from the DOJ to Boehner.