Published on
the San Francisco Chronicle

Obama Drops Defense of Defense of Marriage Act

Carolyn Lochhead

The Department of Justice has just announced that it will cease defending the 1996 Defense of Marriage Act. The administration has determined that the act is unconstitutional. The move is a huge step for the gay and lesbian civil rights movement. The law is the last major federal statute that openly discriminates against gays and lesbians, following the repeal late last year of the Don't Ask, Don't Tell ban on gays in the military. Both laws were signed by former President Bill Clinton and crafted by a GOP-led Congress during the culture wars of the 1990s. They survived through the Bush administration, a chapter in history that the Obama administration is now starting to close.

The move has immediate consequences only in the District of Columbia and five states that allow same-sex marriage: Massachusetts, Iowa, New Hampshire, Vermont and Connecticut, and to the roughly 18,000 couples whose legal marriages in California were grandfathered in before the Prop. 8 voter initiative took effect in 2008 to ban same-sex marriage.

"It's a development -- a momentus and historic development -- that the Justice Department will no longer defend the statute," said Fred Sainz, spokesman for the Human Rights Campaign. "But there is still a very long road ahead of us to make these lawsuits successful and eventually get the statute off the books."

Attorney General Eric Holder sent a letter to Congressional leadership informing them of the decision not to defend the statute in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of DOMA, which defines marriage for federal purposes as only between a man and a woman.

The letter notifies Congress that it will be up to the House and Senate to decide whether to hire attorneys to defend the statute. The Windsor case deals with estate taxes -- a GOP favorite; Edith Windsor was with her late spouse, Thea Spyer, for 44 years, according to the ACLU, which helped filed the suit. The IRS refused to acknowledge the marriage and imposed $350,000 tax on Spyer's estate when she died, which not have been levied had their marriage been recognized by the feds.

"The single most important point is that the President of the United States and the Attorney General have said that sexual orientation discrimination must be presumed to be unconstitutional," said Evan Wolfson, founder and president of Freedom to Marry.

Here is Holder's statement in full:

"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."

Find the original tally of final passage on DOMA in the House here and the Senate here.

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