Wednesday, February 23, 2011

Breaking: DOJ won't defend sec. 3 of DOMA

I have been following several federal cases that challenge section 3 of DOMA, which forbids the Federal Government from recognizing legal same sex marriages. (The other section says that STATES don't have to recognize them).

Numerous challenges have been brought that point out that the Federal Government is treating legally married citizens differently according to their gender. The furthest along is in Massachusetts, where a Federal Judge found for the married couples, and appeals were being files to take it to the Circuit court of appeal, and from there possibly to the Supreme Court. There are other cases pending too.

Now, the Dept of Justice announces they will not defend section 3 in two cases in the 2nd District court. (Despite claims otherwise, they are not required to defend if they don't want to). Other cases, confusingly, will continue to move forward; it appears this is specific to the 2nd district because there isn't already precedent there. but they will make it clear in other cases of their belief that strict scrutiny applies.
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.


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.


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 Congress has repealed the military’s Don’t Ask, Don’t Tell policy.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.

Some commentary:
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, in 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 serving openly in the military.

The announcement today does not overturn the law. 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 or most of DOMA invalid if the federal government withdrew its arguments in defense of it.

Update Detailed legal argument in the letter from AG Holder to Speaker Boehner here.

More at Gay married Californian.

Important: DOMA is still the law of the land and we are still denied our 1400 rights. This just means that DoJ will not defend section 3 in federal court. It's an improvement, but the game is still very much on.


Karen said...


This is good. You are correct, it isn't everything, but it is a good step in the right direction.


JCF said...

So sue?

Somebody put the poor camel out of his misery: his back looks ready to cave!