President Obama To Supreme Court: ‘DOMA Is Unconstitutional’

President Obama's administration filed an historic legal brief late Friday that declares his belief to the US Supreme Court that DOMA is unconstitutional. The dossier was written by Solicitor General Donald Verrilli.

According to NBC News:

6a00d8341c730253ef017c36ff5763970b-200wiThe Obama administration urged the Supreme Court on Friday to throw out a section of a 1996 federal law that prohibits recognition of same-sex marriage. 

The brief was filed Friday in United States v. Windsor, a case challenging Section 3 of the Defense of Marriage Act, or DOMA, the law that legally declares marriage to be only between a man and a woman. That section allows state and federal authorities to deny benefits to same-sex couples that are commonplace for heterosexual couples, like insurance for government workers and Social Security survivors' benefits.

This marks the first time a president has endorsed same-sex marriage rights in the nation's highest court. 

The brief reads in part: "Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people."

Read the entire document here


  1. Randy says

    I’m pleased to see that this brief is a strong push for heightened scrutiny, with a fallback position of “rational basis plus”. It’s remarkable to see the country’s executive branch write these words.

    I’m a bit disappointed they are not willing to contest DOMA Section 3 on rational basis grounds, as there is clearly no rational basis.

    I do hope to see the administration file an amicus brief in the Prop 8 case (a case they did reference in a footnote here), perhaps also pushing for heightened scrutiny there, as the cases are in large part the same — either sexual orientation discrimination in marriage is OK, or it isn’t.

  2. Wisebear says

    @theseer: “an historic” is correct. Although grammarians now reluctantly accept the alternative, traditionally if it’s preceding a word starting with h, the correct usage is an, not a. It’s really sad that they don’t teach this any more.

  3. candideinnc says

    Can someone tell me? If DOMA is found unconstitutional, and there is federal recognition of same sex marriages, would someone in a state like North Carolina be able to go to Massachusetts, marry, and return as a couple to North Carolina and get all the rights of a married couple? How will states that have bans against same sex marriage be affected?

  4. V-8 says

    I think “a historical” and “an historical” r both correct, all having to do with how one pronounces the H…. maybe this is even an british/american difference?

  5. RONTEX says

    The brief reads in part: “Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people.”

    Did Obama include this specifically for Scalia?

  6. TheSeer says

    Sorry for going off topic. English is not my first language and all my English teachers taught me that I should use “an” only if “h” is silent, like “an hour”, “an heir”, “an honest man”… And therefore “a historian”, “a hotel”… So I have asked Google and realized that this was not settled issue. There are two schools of taught. The first is that of my teachers (it matters only wether “h” is silent or not) where in the second one you use “an” in front of silent “h” OR if the first syllable is unstressed. Therefore “an historian”, “an hotel”… “An herb” is wrong in both schools.

  7. says


    Great question. But what you are actually asking is a question on the recognition of foreign marriages…..or the “full faith and credit” doctrine.
    Of course the USA should recognise valid foreign marriages if such marriages are valid in the place of performance of such marriages.( gay or straight)
    The USA has been refusing to do so based on DOMA and public policy.
    Even though foreign European countries recognise gay marriages which were performed in Mass.
    It make my blood boil !!!!!

  8. candideinnc says

    Jack–Not exactly what I was asking. DOMA, as I understand it, says that a same sex marriage in one state need not be recognized by the other states. This is unlike other legal contracts, where one state must recognize legal contracts made in other states. It also says that the federal government must not provide federal benefits to same sex couples. If the one section of DOMA is overturned, I think what that means is that the Federal government must recognize the legality of a state’s same sex marriage contracts. So what is to prevent me, in North Carolina, from going to Massachusetts and marrying, then returning to NC and demanding federal marriage benefits? What effect do the state prohibitions have in that case?

  9. MikeBoston says

    @ Rontex

    It depends on whether the h is aspirated or not. If DOMA is struck down, a homosexual will experience an historical change is civil right. An hotel would always be wrong as the h is always aspirated (never pronounce otel). If you pronounce herb as erb then an is the correct article. No one said English was easy. As for words like honour, hysterical, history – most grammars still give an as the preferred preceding article though some recognize a as an acceptable alternative.

    Back on topic…

    Congratulations to the President for doing the right thing! I don’t really think he is doing it just for his legacy – but I don’t care either. He is doing to the right thing for us – yay!

  10. joe says

    @candideinnc – you would be able to to go a state where gay marriage is legal and return to your own state and still get federal marriage benefits. However, DOMA Section 2, which is not part of these cases, allows your home state to prevent you from enjoying the benefits of state-level marriage — things like inheritance under a will or join ownership of property called “tenancy by the entireties” which is only available to married couples. In other words, while this case would be a BIG step forward, we still have DOMA section 2 to deal with.

  11. ryannson says

    This is what presidential leadership on LGBT issues (and basic national civil equality) looks like.

    It makes for a very sharp contrast between President Obama and every previous holder of the office.

    I, for one, will never forget who had our back in the months leading up to the Supreme Court’s ruling.

  12. candideinnc says

    Joe–Thanks. That is helpful. In my will here in NC, I have passed property to my partner. Our house is passed through “joint tenancy with rights of survivorship.” My retirement accounts are all TOD–Transfer on Death. Do you know if those precautions sound like they are sufficient to help avoid state failure to recognize same sex marriages, or are there other state laws you are familiar with that are going to cause headaches for my partner?

  13. David Hearne says

    DOMA is clearly unconstitutional and Scalia is on record for saying that Lawrence meant the USSC would necessarily have to find for same sex marriage.

    I don’t like Scalia, but honestly it’s his presentation that I can’t get past. He comes off as too common and street to be a Supreme Court Justice… but he is a sharp intellect. Moreover, as I often have to remind conservatives who are continually disappointed by Republican appointees: all Supreme Court justices want to be remembered as a great legal mind. You simply can’t do that if you aren’t willing to apply the Constitution to new situations and find for the principle rather than the letter.

    No, of course the Founding Fathers never intended for the government to approve of gay marriages. Just as the First Amendment was in reality a protection to be any kind of Christian you wanted to be. However, the principles support a broader application. The judges who expand equal treatment under law will always be remembered over those who did nothing.

    Scalia will either recuse in deference to the Vatican, or he will find for same-sex marriage to be a great legal mind. I predict the latter.

  14. says

    Joe ;
    American law is sure different to other common law countries….tenancies by entireties ?
    Joint tenancy or tenancy in common we have; but not “tenancies by the entireties”.

    @ CANDIDENNIC : I can understand your Joint Tenancy which always has a jus accrescendi, a right of survivorship whereas a Tenancy in Common does not. that’s the distinction.

    But I don’t know anything about state laws which might affect your situation.
    @ JOE : state law can still deprive couples of benefits ? How ?
    Same sex couples can avail of the common law as straights do, they can have the Joint Tenancy which is unaffected by ANY marital status.
    I don’t see the need for “tenancy by the entireties” whatever that is.

  15. Bollux says

    @Mikeboston Oh you are so close. But no, while it does register as an allophone of the fricative phoneme /h/, aspiration is technically a suprasegmental off-glide of plosives. That is not the process in question. What we have here is a cross-lexical interaction called sandhi that is affected by – of all things – word length and syllabic stress.

    “An historical X” and even “an hysterical Y” both are produced in natural speech because the strong features of the sounds surrounding the /h/ sound – the preceding /n/ and the following vowel of any type – are taking over the already wispy nature of the unvoiced glottal fricative /h/ – which is now even weaker because the stress has shifted off its syllable. When a sound is made with the vocal folds vibrating, it is voiced – without, unvoiced. Natural nasals and vowels are always voiced in English. As air is escaping and the vocal folds are vibrating, the tongue is forward in the mouth to produce the /n/ sound. To transition to an /h/ sound, the vocal folds must stop and the tongue must lower. But without a stress, and the next sound being a voiced vowel, the vocal folds will just continue to vibrate and the /h/ will mutate into something more like a vowel. That is the sandhi. A phonosyntactic consonantal voicing one.

    By contrast, “history” and “hysteria” take the determiner “a” because their first syllable stress renders above morphosyntactic alteration moot. And clearly “an hiss” is ungrammatical in every way. So the longer the word is, the farther the stress is from the initial /h/ sound, and the quality of the surrounding phonetic sounds is all at play here.

  16. JT says

    I’m really glad to see this. I’m glad he’s still supporting us post election. At the risk of being cynical, I thought that there was a chance gay rights would have lost focus once he secured reelection. This makes me believe that he does truly care for equality for all Americans.

    The GOP would never. Let’s be real about that.

  17. Zlick says

    I think the pesky elements of DOMA that remain after the Supreme Court abolishes the most egregious section can easily be overcome by seeing a decent lawyer. So go to Massachusetts to get married and return to Dixie and, viola, you’re still married. A lawyer can arrange for all estate matters and property matters. The Obama administration has already handled, for all intents and purposes, hospital visitation rights nationwide – but that same lawyer can handle health care decision making issues with that same estate plan that deals with inheritance, etc.

    No lawyer can grant social security survivor benefits, for example. So the DOMA case will deal with the hard parts. The IRS will treat you as a married couple even if you live in North Carolina but got married in New York. You might still be unmarried for state income tax purposes, but that’s the only vestige that will remain. I predict the rest of DOMA will fall before too long as well.

    This amicus filing by the president is wonderful, but I still hold out hope Obama will file an amicus brief for the Prop 8 case as well. The implications of Prop 8 are so very important.

    Oh, and – as far as I’m concerned – it’s AN historical. Heheh.

  18. Kyle says

    The brief is a gripping read. I’m very proud of my president.

    I’ve not heard a single good argument defending the denial of federal rights and benefits to a subset of legally married couples. If the conservatives on the bench have any integrity, they will all deliver an opinion that Section 3 of DOMA is unconstitutional. I doubt there will be a unanimous opinion, because the conservatives will want their opinion(s) to be as restricted as possible.

    BTW, Bollux is more or less correct about a or an before h. From Wikipedia: “Some speakers and writers use an before a word beginning with the sound /h/ in an unstressed syllable: an historical novel, an hotel. However this usage is now rare.”

  19. Rexford says

    As for Scalia, I think he’s the one who already wrote in his dissent in the Lawrence v. Texas case that if those laws fell, then there would be nothing preventing same-sex marriage. So here’s his chance to become a prophet.

  20. Mark says


    I’d recommend not commenting on something stating that it doesn’t exist when you so clearly advise us that you don’t know what it is. :-)

    Tenants by the Entirety provides joint ownership with the added benefit of protection from creditors. Not a bad deal if you live in a state which has it and you can get married. I clearly see the need for that even if you don’t.

    The following states do support tenancy by the entirety
    District of Columbia
    New Jersey
    Rhode Island

    The following support it only for real estate
    New York
    North Carolina

  21. says

    I suspect Mikeboston may know French, where the aspirated h makes all the difference when preceded by an article. I knew exactly what he meant, and he’s right.

    Bollux: are you from outside the US? Or somewhere where British English is standard? Because in American English style “an historic” is wrong. I’d even view it as a hyper correct form just a tad more pretentious and perhaps a tad more forgivable than “for you and I.”

  22. says

    Q. Is it an historical novel or a historical novel?

    A. In Chicago style, it’s a historical novel. Please see CMOS 5.73: “With the indefinite article, the choice of a or an depends on the sound of the word it precedes. A comes before words with a consonant sound, including /y/, /h/, and /w/, no matter how the word is spelled {a eulogy} {a historic occasion} {a Ouachita tribe member}. An comes before words with a vowel sound {an LSAT exam room} {an X-Files episode} {an hour ago}.”

  23. nonapologies says

    The heighten scrutiny has meaning far beyond marriage equality.

    I am not sure why this is missed by so many. It means that other gay rights issues, such as housing and employment discrimination, also have greater chance of being addressed.

  24. nonapologies says

    Mark is right that this will have a significant impact on the financial rights, including in debt and bankruptcy issues. Until now, creditors could go after the property of same sex spouses even with state rights because DOMA prevented recognition of the state rights. This is true due to the way the bankruptcy code and many other laws are crafted. They are often a mix of state and federal law rather than giving strict jurisdiction to one or the other.

  25. Rich says

    Just a word of warning: unlike Judge Walker, who said that banning same-sex marriage would fail a rational basis test, the DOJ brief relies on the belief that DOMA must survive enhanced scrutiny. They explicitly say that if the Court chooses rational basis as the standard for its review, DOJ would find the statute constitutional.

    It’s all or nothing, guys.

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