Obama DOJ Stops Defending Defense of Marriage Act

/in /by

Finally, some good news from DOJ: Eric Holder has just announced the government will stop defending DOMA.

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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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

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    • eCAHNomics says:

      You stole my comment.

      I got an OFA email asking for volunteers. So I ‘applied.’ In the required sections asking for my experience, why I was applying, etc., I typed: “All the good volunteers I know are going to work at primarying Barak Obama.”

      Mebbe the message is getting thru.

    • endtimesgal says:

      Exactly. I am so cynical I can’t up. He doesn’t give a rats arse about the constitution. He cares about being president again for some reason I can’t fathom. Power-but power to do what exactly? He has no vision.

      • scribe says:

        Vision? He’s got plenty of vision.

        He’s seen how WJC has made zillions of dollars and gets to be describe (as I heard a week or two ago) “President of the World”, flying here and there, getting great seats for all the big events, exhorting people to do good and so on, all the while having someone else pick up the tab.

        I mean, hot and cold running blowjobs adulation is a pretty good gig, no?

        That’s what he sees in his future.

        You and me? Not so much. Or, as I said about Barry’s approach to the economy and the banksters, over 2 yr ago: “Nobody gets hurt. [BTW, average voter, you’re Nobody.]”

    • cayvoo says:

      I agree on your suspicions. Does Obama think that yelling “gay marriage” will make us forget our rising medical costs, our foreclosure and our layoffs?

  2. spanishinquisition says:

    This sounds like complete double-talk saying that DOMA is simultaneously constitutional and unconstituional at the same time:

    “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…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.”

    It sounds like what they are saying is they are going to have a split personality where part of the time they will say DOMA is constitutional and part of the time they will say it is unconstitutional.

  3. Auduboner says:

    And let’s not have ANY more comments that DOJ or Holder act independently from the White House. It was always incorrect, and this proves it, once again. EVERY act and inaction of our Worst Attorney General is determined by the White House.

  4. rmacdonald says:

    Although I am glad to see this development, all it is, is a bone that is being thrown at the progressive base.

    Obama has taken a the Republican playbook and is using the “throw the bone to the base trick”. As long as Obama and his corporatist buddies continue to try and balance the books on the back of the middle class and poor class, I for one am not going to start singing “Happy Days are here again”.

    Obama and his buddies better look and see what happened to the Republicans with their base. I for one will be proud to be one of those left wing crazy nut jobs, mucking up the democratic party in a few years.

  5. perrylogan says:

    How weird it’s gotten. Even when Obama does something that seems vaguely good, you think to yourself, “What’s his game?” Gotta be The Worst Democrat Ever™.

  10. onitgoes says:

    I’ll take it, but to me it’s just more of the same old Kabuki Show.

    I think it’s: toss a bone at the base as an attempt to distract from what’s happening with the Union-busting across the country.

    Thanks for the bone, Obummer, but I’ve still MY eye on the “prize.”

    Power to the People!!

    • lefttown says:

      toss a bone at the base as an attempt to distract from what’s happening with the Union-busting across the country.

      You hit the nail squarely on the head, I think.
      2012 is creeping up awfully fast for the Fence-Sitter in Chief.

  11. spanishinquisition says:

    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.

    Doesn’t the Supreme Court use “rational basis”?…Is Obama expressly saying he’ll defend DOMA as constitutional in the Supreme Court?

  12. ondelette says:

    Twenty minutes after they stopped defending Rumsfeld? Did somebody blow a gasket or get fired or something?

  13. MarkC says:

    >This sounds like complete double-talk

    I think that it is actually a sound way to approach this issue. IANAL but it seems they will continue to argue for DOMA in circuits where there is precedent that any such law with rational basis is Constitutional, and will not argue for it in circuits like the Second where there is no such precedent, because Justice is taking the position that a more rigorous standard applies to laws that concern groups that have historically been discriminated against.

    The idea is that they can’t make precedent themselves, and some circuits have established case law under which DOMA is Constitutional so they have to defend it. But their strategy is not just to drop DOMA, but to establish a more restrictive standard that will stop the next gay-bashing initiative that gains support.

    What happens when the Second Circuit decides this case, ideally, would be that they accept this standard, and when it is appealed, the highest court chooses that standard as the universal one.

  14. wendydavis says:

    Good news from the DoJ? Fantastic!

    Empywheel, NYT has this bit of more Chamber of Commerce story from Wikileaks concerning helping to defeat Daniel Ortega in Nicaragua:

    http://www.nytimes.com/2011/02/24/world/americas/24chamber.html?pagewanted=1&_r=1

    “Created more than a century ago to promote the interests of American corporations, the groups — nicknamed AmChams — today operate in more than 100 countries.”

    Love the ‘AmChams’ nickname, don’t you? Catchy.

  15. maa8722 says:

    DOMA was controversial when it became law during Clinton.

    I’m wondering what legal wickets it went through then, if any, and opponents didn’t wend DOMA’s way up to SCOTUS a long time ago.

    Maybe the gov’t should just get out of the marriage business entirely.

    • Rayne says:

      I disagree; there’s a place for government in marriage, just as there is a place for government to enforce contracts. That’s the only role government should have — the recorder of social and other contracts, the arbiter of social contract disputes.

      But as I see it, we have a much bigger problem with government which refuses to acknowledge and enforce legal contracts — like collective bargaining agreements which bind employers and employees to agreed-upon terms. If government won’t enforce these contracts even when it’s a party to those contracts, why is it sticking its nose in social contracts at all?

      • spanishinquisition says:

        Yes, but the government selects who can get marriage and who can’t. I too think the government should get out of the marriage business and instead uniformly offer civil unions. If someone wants a “marriage,” they can go to a private facility for that where that “marriage,” wont have legal weight, but people can say they are married and conversely nobody has to recognize those marriages who doesn’t want to (but they do have to honor the legally binding civil unions). If left how it is now where some people get marriage and others get civil unions, it’s a bit like having separate drinking fountains rather than one drinking fountain for everyone.

  17. Teddy Partridge says:

    Statement from Freedom to Marry:

    “Freedom to Marry applauds the President and the Attorney General for
    acknowledging that sexual orientation discrimination has no place in
    American life and must be presumed unconstitutional, recognizing that
    discriminatory laws like so-called DOMA must be looked at with skeptical
    eyes, not rubber stamped.

    “The Administration today acknowledges that there is no legitimate reason
    for this discrimination and therefore it cannot be defended under the
    Constitution. This a momentous step forward toward Freedom to Marry’s goal
    of ending federal marriage discrimination and fully protecting all loving
    and committed couples.”

    • spanishinquisition says:

      But that’s not what the administration said. The administration said it would continue to defend DOMA cases where “rational basis” is applied – they in fact call those arguments “reasonable.”

  18. scribe says:

    Re: Boehner and Congress taking up the Admin’s invitation to defend DOMA themselves.

    Kinda hard to do that when you’ve shut down the government (and won’t spend any money), no?

  20. TPAZ says:

    Keep your eyes on the prize. This Administration always toss out some social bone whenever people turn up the heat on an economic situation. Wall Street doesn’t care who kisses whom, for now, as long as they can crush collective bargaining and the unions.
    Yes, this is nice; but why now? Don’t be distracted from what business cares about.

    • mrwebster says:

      @TPAZ.

      I tend to agree. In a first quick read, only one part will not be defended. And as SpanishInquistion noted, they will keep defending depending on siutation. (By the way, Joe Biden voted for DOMA.)

      My way of viewing democratic leadership is that they are socially liberal corporatists. So Obama throws out this measure, but only a half measure from what I czn tell, while he refuses to openly and loudly defend Wisconsin union people and local state Dem activists.

      And as someone else noted, an election is coming up and he needs to gather up rich gay activists for donations.