President Obama has instructed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which has since 1996 allowed states to refuse to recognize same-sex partnerships legally recognized in other states.
The announcement was made in a letter from Attorney General Eric Holder to congressional leaders in relation to two lawsuits, Pedersen v. OPM and Windsor v. United States, which challenge a section of DOMA that defines marriage for federal purposes as only between one man and one woman.
President Obama believes that section – Section 3 — “is unconstitutional” given the Due Process Clause of the Fifth Amendment (including its equal protection component), Holder wrote, and the president has instructed the Department of Justice to no longer defend the law in those two lawsuits.
President Obama “has made the determination,” Holder wrote, that Section 3 “as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”
DOMA was passed by a Republican House and Senate and signed into law by Democratic President Bill Clinton in 1996. In application the law means same-sex couples are not afforded the same rights as straight couples when it comes to Social Security benefits, hospital visitation and other rights.
Following presidential precedent, the Obama administration has been defending the law even though President Obama has long opposed it.
But now, “under heightened scrutiny" since the 2nd circuit court asked for the administration to defend its position given lack of precedent, Holder wrote, the government’s ability to defend the law can no longer be made by “advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.”
That legislative record, Holder wrote, “contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”
Chuck Donovan, a senior research fellow at the conservative Heritage Foundation said that “After a series of steps that undermined the legal case for the Defense of Marriage Act, the Obama Administration has apparently decided to drop its mask and publicly switch sides. This action raises the stakes in this litigation even higher, because both portions of DOMA – both the federal definition of marriage as the union of a man and a woman, as well as the authority of Congress under Article 4 of the Constitution to interpret the Full Faith and Credit Clause to allow states to protect similar definitions – are now at heightened risk.”
Last month, then-White House press secretary Robert Gibbs said that “we can’t declare the law unconstitutional…The President believes, as you said, that this is a law that should not exist and should be repealed. But we, at the same time, have to represent the viewpoint of the defendant.” Gibbs said that “given the current makeup of the Congress,” having DOMA repealed would be :inordinately challenging,”
President Obama told Holder that the Executive Branch of the government will continue to enforce Section 3 “consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.”
In Zanesville, OH, in June 2008, then-candidate Obama said DOMA “was a unnecessary imposition on what had been the traditional rules governing marriage and how states interact on the issues of marriage.”
“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,” said Joe Solmonese, president of the Human Rights Campaign, an advocacy group for gays, lesbians, bisexuals and transgender individuals. Congressional leaders must not waste another taxpayer dollar defending this patently unconstitutional law. The federal government has no business picking and choosing which legal marriages they want to recognize. Instead Congress should take this opportunity to wipe the stain of marriage discrimination from our laws.”
-Jake Tapper and Sunlen Miller
A reminder that in June 2009, President Obama’s DOJ began its defense of the Defense of Marriage Act by invoking incest and adults marrying children.
This did not go over particularly well among some of the president’s supporters.
At a news conference in December of 2010, shortly after signing into law a repeal of the military’s ‘don’t ask don’t tell’ policy toward gay servicemembers, I asked the President if it was “intellectually consistent to say that gay and lesbians should be able to fight and die for this country, but they should not be able to marry the people they love?”
Gay marriage, he said, is an issue with which he struggles.
“My feelings about this are constantly evolving,” he said. “I struggle with this. I have friends, I have people who work for me who are in powerful, strong, long-lasting gay or lesbian unions, and they are extraordinary people, and this is something that means a lot to them and they care deeply about.”