Govt. Will Stop Defending DOMA

By Michelle Garcia

Originally published on Advocate.com February 23 2011 1:25 PM ET

In a significant victory for marriage equality in the United States, the Obama administration announced Wednesday that it will not defend the constitutionality of a key section of the Defense of Marriage Act in federal court.

Section 3 of DOMA defines marriage as a union between one man and one woman for federal purposes and has been a roadblock to equality in federal benefits for gay and lesbian couples since Congress passed DOMA in 1996.

The law remains in effect. But in a statement, Atty. Gen. Eric Holder said that laws affecting the rights of gays and lesbians should be held to a stricter standard of judicial review—the result of a "documented history of discrimination" against LGBT individuals. Holder cited the recent repeal of "don't ask, don't tell" as well as lower court decisions against DOMA and the landmark 2003 case Lawrence v. Texas — in which the U.S. Supreme Court ruled state sodomy laws unconstitutional — as chapter and verse of the evolving legal landscape.

"The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard [of stricter judicial review] and is therefore unconstitutional," Holder said. "Given that conclusion, the President has instructed the Department not to defend the statute in such cases."

Though DOMA has not been repealed by Congress and litigation against it continues, attorney Jennifer C. Pizer of Lambda Legal, one of the national gay legal rights organization challenging the antigay law in federal court, called the decision "a massively important step forward in the recognition that DOMA is unconstitutional and does not deserve the kind of efforts to defend it that we’ve been seeing."

The 1996 law has been at the center of several federal lawsuits in recent years. Last year a federal judge in Massachusetts ruled in two separate cases that DOMA violated the equal protection rights of gays and lesbians. U.S. district judge Joseph L. Tauro also ruled that Congress had violated the U.S. Constitution when it passed the law by taking from the states decisions concerning which couples can be considered married.

In a Wednesday conference call, Lee Swislow, the executive director of Gay and Lesbian Advocates and Defenders, welcomed the Justice Department's decision, but she still expects her organization's case, Pedersen v. Office of Personnel Management, to go through the courts. Swislow expected the case would be held up if congressional leaders decide to defend the law. 

Holder said Wednesday that the
Justice Department will remain a party in federal cases challenging
DOMA. He also notified congressional leadership about the administration's decision "so
Members who wish to defend [DOMA] may pursue that option."

Whether that is likely to happen is yet unclear. But in a statement Wednesday, House speaker John Boehner wasted no time in criticizing the administration's decision. "While Americans want Washington to focus on creating jobs and cutting
spending, the President will have to explain why he thinks now is the
appropriate time to stir up a controversial issue that sharply divides
the nation," the speaker said.

The prospect of Congress intervening and appoint legal counsel to defend a statute would indeed be a rare move, Pizer said. "It's unusual situation, so we don’t have a lot of precedence. But if [Congressional members] wanted to do that, they’d probably let it be known quite quickly."

Joe Solmonese, president of the Human Rights Campaign, called such intervention by antigay lawmakers "likely," but said in a statement that “Congressional leaders must not waste another taxpayer dollar defending this patently unconstitutional law." 

The administration’s decision to no longer defend section 3 of DOMA perhaps echoes rhetoric in recent months from President Barack Obama on a shifting position in regards to gay marriage. Obama in October told AmericaBlog that his position was “evolving,” and in a December interview with this magazine, Obama said: “And so this is an issue that I’m still wrestling with, others are still wrestling with. What I know is that at minimum, a baseline is that there has to be a strong, robust civil union available to all gay and lesbian couples.”

Of the Defense of Marriage Act, Obama declined at the time comment on legal defense of DOMA, though he said,  “I think that the courts historically have played a critical role in making sure that all Americans are protected under the law. And there are certain groups that are in need of that protection; the court needs to make sure it’s there for them.” A few days later, Vice President Joe Biden said there was an “inevitability” of a national consensus on gay marriage.

Wednesday’s groundbreaking announcement by the Justice Department wasn’t the only movement afoot in the national battle for marriage equality. Attorneys who brought the federal case against Proposition 8 earlier today asked the U.S. Court of Appeals for the ninth circuit to lift the court-imposed stay on marriage equality in California. A three-judge panel of the ninth circuit had imposed that stay last year without comment after U.S. district judge Vaughn Walker ruled the 2008 voter initiative unconstitutional. Gay couples are still unable to wed in California as a result.

“[T]here there can be no justification for prolonging the suffering of plaintiffs and the tens of thousands of couples like them for an additional year,” attorney Ted Olson wrote in a court filing.

“Having prevailed at trial, having demonstrated that they had a fundamental right to marry, and having shown beyond dispute that Proposition 8 works irreparable harm upon gay and lesbian Californians by denying them that right,” Olson wrote, “it is simply intolerable for this Court to continue to deny them that right and to perpetuate their pain for such a length of time — especially given that this Court itself has recognized that Proponents may well have no right to appeal at all.”   

Resolution of the Prop. 8 case has been prolonged since the ninth circuit last month asked the California supreme court to determine whether proponents of a ballot initiative have the right to defend such propositions in state court when officials decline to do so (the court last week announced it would hear arguments in the matter). Olson and co-lead attorney David Boies have asked for the state high court to expedite handling of the question before the state supreme court. Oral arguments are currently scheduled as early as September.

In a Wednesday conference call Boies praised the attorney general’s statements cases regarding the rights of gay and lesbians warranted a stricter level of judicial review. He also said that the administration’s decision would only serve to undermine the constitutionality of state bans on marriage equality.

Statements applauding the decision were sent out rapid-fire following Holder’s announcement. “The Obama Administration’s decision is a victory for civil rights, fairness, and equality for the LGBT community and all Americans,” Rep. Nancy Pelosi said. “The fight for marriage equality is far from over, and we will continue to work towards the day when all American families are treated with respect and viewed equally in the eyes of the law.” 













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BARACK OBAMA ERIC HOLDER X390 (GETTY) | ADVOCATE.COMSTATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON — 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.