about face

SHOCK: Obama Says DOMA Is Unconstitutional, DoJ Won’t Defend It In Court

Well isn’t this a remarkable turn of events. After years of defending the Defense of Marriage Act in court, Attorney General Eric Holder says DoJ will no longer try to maintain the law’s Section 3, which forces the government to treat legal same-sex marriages as invisible. Done. Kaput. Moreover, the president has finally said concretely what he’s only hinted about before: that DOMA is unconstitutional. Plain as that.

In an open letter to House Speaker John Boehner, Holder writes, “After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination. ”

He continues: “While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.”

The significance of this development cannot be overstated. No longer will the federal government truly stand in the way of lawsuits challenging the constitutionality of DOMA’s Section 3. Which means if Congress does not repeal the law, the court’s will, and the Obama administration won’t get in their way. Further, we have Obama (through Holder) saying he believes the law “violates” the Constitution. We have been struggling to get him to say exactly that, and argued that until he uttered the words, we should believe his stance to be he’s fine with DOMA.

This is a great day.

UPDATE: Boehner responds: “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.”