Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Wednesday, February 23, 2011

Statement 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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.

http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

(Of course I agree that DOMA should be stomped dead).

the above remarks from DOJ do make me wonder, however....

1. "The President has deemed a law unconstitutional"...is the major point of the above.

So, if the President has the power to deem a law unconstitutional, why can't he say the same for many of the
legal rights/invasion of privacy law ( Patriot Act springs to mind).

2. Even tho the President has said the law is unconstitutional, "the Executive Branch will continue to enforce the law."
Really...? enforce a law the President says is unconstitutional?


and

3." both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation"
Why? If the President has the power to determine the law is unconstitutional, and ahs done so, what is there to litigate in court?


Would love to see some discussion on the logic, again with the understanding that I am not advocating FOR DOMA,
but pointing out what seems to be illogical points in the statement by the DOJ.

The DOJ is supposed to defend federal laws to the ends of their ability. Obama is basically gaming the rules to get away with dropping DOMA based on the most recent case rulings, and also on letting Congress take up it's defense if they choose, even though strictly speaking it's not done at his discretion.

Long list of laws that can be declared unconstitutional.

he swore an oath to defend and protect the Constitution (and the underlying assumption there being the enforcement of the laws)
In the meantime, the DOJ doesn't have to defend the law - but can argue in court that the Admin finds it unConstitutional, adding a huge weight to the party in the case who is also arguing that the situation violated their rights.

But until either a Court throws out the law or the Congress repeals it, it's still the law. Just like in Calif where the governor and AG said Prop 8 was unConstitutional and they wouldn't defend it - that didn't mean that the law just went away and folks could start getting married - it was just one branch of government telling another where they stood on the issue. But at the end of the day, each branch has to follow the laws as they are written until otherwise disposed of.

:hi:

It will then be pushed to SCOTUS to determine if it's constitutional or not. That's the whole point of his actions. It's in the statement.

IAMAL, but this is how I understand it:

Federal law can have different challenges in different parts of the country. DOMA (section 3 in specific) has already been found constitutional in some parts. That's what the "binding circuit court precedents" part is about.

So now we effectively have what is called a circuit split, where the DOJ is obligated to defend DOMA as Constitutional in some parts of the country, but not obligated to defend it in other parts of the country.

http://en.wikipedia.org/wiki/Circuit_split

Basically, it has to go to the Supreme Court to be resolved nationwide, until then, different parts of the country will have different rules the DOJ has to follow.

edit: improve wording

In a major reversal, the Obama administration has notified Congress that it will no longer defend the federal law that says marriage can exist only between a man and a woman.

Attorney General Eric Holder says he has recommended, and the president has agreed, that the law unconstitutionally discriminates against same-sex couples who are legally married but whose status is not recognized by the federal government.

http://firstread.msnbc.msn.com/_news/2011/02/23/6116207-obama-admin-will-no-longer-defend-federal-marriage-act-in-court :thumbsup:

I'm really moved by this and I'm under the impression that this was done because Obama wanted to repeal DOMA during his 4 year term and realizing that this is not about to happen. Interesting.

And there's no guarantee of getting a friendly Congress.

I am with agreement in your impression.

I have a feeling people will be picking at other DOJ/Obama scabs very soon. There are a lot of people who want obama to come out against EVERYTHING and expect him to use the DOJ as a vessel to do so. I do not agree. Give me a scalpel and lasers any day over Axes and machetes.

Either way, I love that this is happening.

-Laelth

Very good news. :thumbsup:

K and R