The Department of Justice announced this decision today in the context of two specific lawsuits challenging the constitutionality of the Defense of Marriage Act, which was passed by the Clinton administration:
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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.
Here is the letter that Attorney General Eric Holder sent to House Speaker John Boehner about the DOJ’s decision.
Alex Blaze at The Bilerico Project explains that, prior to this, the DOJ considered Section 3 of the DOMA to be “discriminatory,” but not “unconstitutional”:
All during the Smelt brief drama in the summer of 2009, certain former lawyers on the internet kept on saying that the Justice Department didn’t have to defend DOMA because Barack Obama had already said that DOMA was unconstitutional. That was untrue; he had only said DOMA was “discriminatory,” and the Constitution allows many forms of discrimination.
The Administration, through Attorney General Eric Holder, said today that it sees Section 3 of DOMA as unconstitutional and has instructed the Justice Department to no longer defend that part of the act. (Section 1 is the name, Section 2 says that states don’t have to recognize same-sex marriages from other states, and Section 3 says that the federal government won’t recognize same-sex marriages.)
Joe Sudbay at AMERICAblog Gay excerpts Sections 2 and 3:
Section 3 is the portion of DOMA that limits federal marriage benefits to opposite-sex married couples. There are over 1,000 such benefits at the federal level, from social security to tons of other health care benefits, tax benefits, and more.
The following excerpts are the main provisions of the Act:
Section 2. Powers reserved to the states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of ‘marriage’ and ‘spouse':
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
The other portion of DOMA deals with ensuring that one state isn’t forced to recognize another state’s marriage of a gay couple – today’s decision by the President doesn’t affect that, but I’m not sure the issue is even ripe yet.
Naturally, bloggers on the right are attributing this decision to sinister political motives. Ed Morrissey disingenuously questions the timing, without reference to any of the abundant explanations (like Eric Holder’s letter to Boehner and the announcement of the decision itself):
Sooooooo …. when did the Constitutional Scholar in Chief come to this conclusion? Barack Obama has been in office for two years (having run on the promise to repeal DOMA), and during his entire term, the DoJ defended DOMA’s constitutionality. Now Obama is apparently saying he was wrong all along.
Again, today’s decision is ONLY about Section 3 of DOMA. That said, Ed does have a point. It’s undeniably true that the DOMA IS unconstitutional, that Pres. Obama should have taken this step a long time ago, that Obama therefore WAS wrong on this issue, and that he has now, and finally, come to realize that. Unless you are a right-wing Republican, there is nothing wrong or inappropriate about saying you’ve been wrong, if you have been.