Obama: DOMA Is Unconstitutional

 Updated below

Major, long-awaited development in the same-sex marriage wars today, as the Department of Justice cuts loose from defending the Defense of Marriage Act.

 From the press release:

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.  

More later




In another key section of the announcement, DOJ says:


 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.

This is important, as it means that the litigation will presumably continue forward, most likely to be decided by the Supreme Court -- which is what many same-sex-marriage proponents want.


Politically, however, it means that the DOMA-defense ball will be carried by House members -- meaning primarily Republicans, without the bipartisan cover of the Obama administration's agreement.


Some Democrats may join or endorse the effort, but from this point DOMA will probably be increasingly seen as a partisan battle, with the GOP fighting to prevent gay marriages from receiving federal recognition.




As background, GLAD brought legal challenges to DOMA (Defense of Marriage Act) last year, scoring a key victory in Boston's federal 2nd District court, which ruled that Section 3 of DOMA -- defining "spouse" as a member of the opposite gender -- is unconstitutional.


The US Department of Justice, which represents the government in defending the law, has appealed to the 1st Circuit Court of Appeals. (Other related suits are also working through the system.)


Obama's view has long been that A) he is personally opposed to legal same-sex marriage; B) he is personally opposed to DOMA, without necessarily saying that it is unconstitutional; C) he and the DOJ are oblilgated to carry out the law, meaning depriving same-sex couples of various rights, privileges and benefits; and D) he and the DOJ are obligated to defend DOMA in court.


In essence, Obama is standing pat on A and C, but saying that his mind has changed on B -- that changing standards compel a higher legal standard at this point, which DOMA does not attain, and therefore he is not merely personally opposed to the law, but considers it unconstitutional.


Hence, he is reversing course on D.


And more:


Here is Attorney General Eric Holder's letter to House Speaker John Boehner explaining the decision. A couple of things to note.


First, the letter makes a strong case for the use of a "heightened scrutiny" standard of review for classifications based on sexual orientation. This standard of review question has not been decided before by the Supreme Court; the heightened security standard, in a nutshell, would be a powerful force for gay rights under federal law, if adopted. The DOJ arguing it doesn't make it so, but laying out such a strong argument for it is a big deal.


Also, the letter ends by advising Boehner that motions to dismiss in the relevant cases are due by March 11, 2011. That basically appears to force Congressional Republicans's hand quickly. If I'm understanding correctly they will have to declare, over the next two weeks, whether they want to pursue the defense of DOMA's Constitutionality -- which they presumably will. As it happens, the Republicans will be taking this high-profile plunge into the gay marriage issue while the battle over the government shutdown rages. That might not look good.


Bear in mind, in terms of the politics, that what is at stake is not whether couples can get married in Massachusetts and elsewhere, but whether those legally married couples should be denied federal benefits that other spouses get.


And another update:


The first words out of Boehner's office are telling. Via TPM, Boehner's spokesperson's statement:


"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."

Immediately, Boehner realizes what I suggested above -- that it won't look good for the GOP to be jumping into gay marriage right now. So, his very first words are to cast Obama as the one choosing this particular time to stir it up.


Of course, Obama's people will argue the opposite -- that they are choosing to stop the issue, by withdrawing from the case and letting the litigation end. It will be, in their telling, the GOP choosing to stir it up by, in essence, taking over the DOMA defense.


I suspect that, for whatever it's worth, that's a PR battle the White House will win -- but the fact that Boehner is immediately picking that battle speaks volumes.


More update -- from GLAD


GLAD, which is representing the same-sex spouses challenging DOMA in the relevant cases, just spoke to me after taking time to sort out the developments. GLAD's Lee Swislow tells me "We think it's really significant that the Department of Justice agreed with something that we've been arguing for years" -- namely, that when you have a law that groups people by sexual orientation, there should be a high standard of scrutiny for why it's being done.


The DOJ argument for that high standard "really raises the bar around any kind of discrimination based on sexual orientation," Swislow says -- extending well beyond marriage issues, if it holds. "It applies to any distinction based on sexual orientation."


Swislow confirmed my understanding, as written above, about what comes next. She makes an important clarification that I failed to specify: either house of Congress can make the decision to defend the DOMA law in court -- which is to say, it does not require both houses to agree. Thus, the GOP-led House can (and, Swislow agrees, probably will) take over the case regardless of whether the Senate acts.


Swislow also says that, while the government's motion is in fact due March 11, most likely this development will result in a postponement of that date, giving Boehner more time to actually move forward.


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