Barack Obama | DOMA | Eric Holder | Gay Marriage | News

BREAKING: Obama Asks Justice Department to Stop Defending DOMA in Court, Declares Section 3 'Unconstitutional'

Attorney General Eric Holder has just released a statement regarding the Justice Department's defense of the Defense of Marriage Act (DOMA), 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."

Holder continues: "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."

The memo notes that the White House is not ending enforcement of DOMA, just its defense in court. Congress must repeal the law or a court must rule in one of the pending cases for enforcement to change.

What does this all mean? Analysis from our legal expert Ari Ezra Waldman HERE.

Whitehouse Full statement from Attorney General Eric Holder:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

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  While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.

We'll have some analysis coming up from our legal expert Ari Ezra Waldman, shortly...

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Comments

  1. @KT, I am always fascinated at people who complain about the means people use to provide them with something that's free, considering maintaining these free things costs money. That said, I'm very glad to hear about this DOMA development!

    Posted by: Joey Y | Feb 23, 2011 12:15:29 PM


  2. Yay!

    Posted by: Kyle | Feb 23, 2011 12:32:22 PM


  3. THIS IS HUGE! THANK GOD WE HAVE AN ADMINISTRATION IN THE WHITE HOUSE THAT RECOGNIZES EQUALITY! The same can NOT be said for GOP/TEA PARTY leaders (sadly).

    Posted by: PriceCut | Feb 23, 2011 12:36:18 PM


  4. Great progress, keep the ball rolling!

    Posted by: teyshan | Feb 23, 2011 12:38:20 PM


  5. I wonder if a Mc Cain/Palin white house would have the balls to adhere to the Constitution?

    Posted by: ty | Feb 23, 2011 12:39:34 PM


  6. What is the article 3 exactly? Is it the denial of federal recognition to those legally married in their states?

    Posted by: George | Feb 23, 2011 12:41:41 PM


  7. WOW! Take that bigots!

    (And thank you, Mr. President).

    Posted by: ichabod | Feb 23, 2011 12:44:35 PM


  8. DOMA Text can be found here:

    http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.ENR:

    The meaningful part of Section 3 is as follows:

    SEC. 3. DEFINITION OF MARRIAGE.

    `In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'.

    Posted by: Mike8787 | Feb 23, 2011 12:46:28 PM


  9. I am curious to see what the trolls that always bash Obama on here have to say now.

    Posted by: hassia | Feb 23, 2011 12:51:33 PM


  10. Ah, the implication that it's professionally responsible for a lawyer to be unreasonable (in the seventh paragraph of the quote from Holder) just warms my heart.

    Beyond that, it's nice that principle is starting to make itself seen through the fog of legal blather.

    Posted by: tominsf | Feb 23, 2011 12:58:56 PM


  11. Finally, the man I voted for has emerged.

    Posted by: MrRoboto | Feb 23, 2011 1:06:56 PM


  12. I literally cannot wait to see maggie gallagher's head spin 360 and her vomit spew across the room a la Linda Blair.
    (i deliberately won't use capitals for mg's name)

    Posted by: Paul | Feb 23, 2011 1:10:52 PM


  13. @ paul
    Maggie's head already has, on Fox. It kind of reminded me of Katy Perry's "Firework" expect it was just one exploding boob and not two.

    Posted by: The Realist | Feb 23, 2011 1:19:25 PM


  14. Rejoice. I pray for Obama every day -- God bless that man.

    Posted by: Andrew | Feb 23, 2011 1:24:05 PM


  15. Er, slow down, kids. All the political capital spent to repeal DADT, with implications, can I say, for a FEW brave folks in an all-volunteer military, and the endless manipulations thus far that have effectively yielded NOTHING there - folks are still being sniffed out, tried and removed - provides only a blueprint for the ways DOMA, whose implications reach into the lives and homes of MILLIONS, will be endlessly massaged, yielding little or no change ahead. Election posturing has begun. Promises are being resurrected that have still not been anyone's reality. Will the GOP do any of this? No, but if you take a close look, Barack hasn't done much more than strike the occasional pose - expediently. I'm just sayin'. Unleash your hounds, readers.

    Posted by: Wavin' Dave | Feb 23, 2011 1:29:23 PM


  16. This is a good first step!

    Posted by: Ty | Feb 23, 2011 1:39:20 PM


  17. Eggsellant! Rock on, Obama!

    Posted by: Anonymouse | Feb 23, 2011 1:40:21 PM


  18. Looks like some people here will still be satisfied/convinced only when Obama french kisses Biden during a press conference. Obama has been pro-equality all along. He has just had to play a difficult political game in a still homophobic country.

    Posted by: candide | Feb 23, 2011 1:50:33 PM


  19. Vice President Biden is one of the sullied Democrats who enacted DOMA in the first place. http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00280#position

    Posted by: Anonymouse | Feb 23, 2011 2:06:13 PM


  20. This is welcome news, but also (more cynically) a welcome political ploy.

    The Republicans will no longer be able to bat away social issues in the upcoming election. Unlike abortion, however, gay rights issues are slowly gaining acceptance in this country.

    More importantly, this is the exact type of issue that splits the Tea Party -- those that are true libertarians, and those that are just bible-banging right wing nuts in disguise.

    What is risky politically is not that this is DOMA, but that the president announces that the DOJ will not defend something which I thought, procedurally at least, they had to.

    Posted by: Gregoire | Feb 23, 2011 2:07:51 PM


  21. @Gregoire

    The answer to your last statement:

    "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."

    Posted by: jjasonham | Feb 23, 2011 2:34:30 PM


  22. Thank you Jason!

    Posted by: Gregoire | Feb 23, 2011 2:50:36 PM


  23. No prob!

    Posted by: jjasonham | Feb 23, 2011 3:11:19 PM


  24. ACTION NEEDED

    President Obama has instructed the Justice Department to cease defending the so-called "Defense of Marriage Act" in federal court.

    Please contact the White House to pledge your support to this change in policy.
    White House comment line: 202-456-1111
    Web-based form: http://www.whitehouse.gov/contact
    Email: president@whitehouse.gov

    Please contact your Senators and Congressmen as well as Republican House Speaker, John Boehner, to urge them NOT to independently defend this policy in federal court

    Contact House Speaker John Boehner
    Telephone: 202-225-0600
    Web-based form: http://www.speaker.gov/Contact
    Email : SpeakerBoehner@mail.house.gov

    Posted by: Troubletown | Feb 23, 2011 3:16:55 PM


  25. I don't want to look a gift horse in the mouth but how can he now claim the DOMA, or parts thereof, are unconstitutional when they went to court, and UNDER OATH, declared that in their expert opinion it WAS constitutional?

    Even when specifically asked about defending a law that was clearly unconstitutional his spokesman defended their defense.

    Posted by: TampaZeke | Feb 23, 2011 3:41:54 PM


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