White House, Justice Department back off ‘Defense of Marriage Act’

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March 3, 2011
By: Chuck Colbert/TRT Reporter
In a surprising and significant legal turnaround, President Obama has determined that part of the Defense of Marriage Act, or DOMA, is unconstitutional, handing gay-rights activists a big win.

The news came on Wednesday, Feb. 23, in a letter from Attorney General Eric Holder informing Republican Speaker of the House John Boehner that the Department of Justice will no longer defend in court Section 3 of the 1996 law that denies married same-sex couples federal recognition.

“After careful consideration, including a review of my recommendation, the president has concluded” that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” the attorney general wrote, referring to their view that DOMA should be held to a careful legal standard of review.

“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,” Holder’s letter continued. “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.”

Two pending lawsuits in the New York-based Second Circuit – Pedersen v. OPM, filed by Gay & Lesbian Advocates & Defenders, and Windsor v. United States, filed by the ACLU – gave the White House an opportunity for the turnabout.

In the Second Circuit, the court has not ruled one way or the other to the proper level of constitutional scrutiny that applies to anti-gay discrimination.

But in July, 2009, in Boston, US District Judge Joseph Tauro ruled in one case, Commonwealth v. Department of Human Services, that DOMA violated states’ powers  granted them under the Tenth Amendment of the US Constitution.  In another case, Gill v. Office of Personnel Management, Tauro ruled that  DOMA violated equal protections embedded in the due process clause of the Fifth Amendment insofar as to “disadvantage a group of which it disapproves,” as reported by Keen News Service.

Both cases are on appeal in the First Circuit, but the Department of Justice will not be defending DOMA in court.  But Congress could mount a defense.

Right away, gay-rights lawyers and state officials in Massachusetts haled the president’s move.

Anthony D. Romero, Executive Director of the ACLU, praised the president in a statement for doing “the right thing,” and for propelling “gay rights into the 21st century where it belongs.  Government finally recognizes what we knew 14 years ago – that the so-called ‘Defense of Marriage Act’ is a gross violation of the Constitution’s guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America.”

Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, which successfully litigated the Gill lawsuit, also issued a statement.  “It is extraordinarily significant that the Department of Justice recognizes what we have been saying for years in our litigation,” she said. “Laws that distinguish between people based on sexual orientation are more likely to reflect prejudice against gay people than good public policy.”

Massachusetts Attorney General Martha Coakley, whose civil rights division successfully litigated the Commonwealth lawsuit, said that she was “very pleased” with the president and Justice department’s determination.

“We brought our case based on a firm conviction that to achieve equality for all married couples in Massachusetts, we need to ensure that all citizens enjoy the same rights and protections under the Constitution,” Coakley said during a Wednesday afternoon press conference.  The determination, she said, “Means that DOMA has been declared discriminatory and unconstitutional by a federal judge, the Department of Justice, and the President of the United States.”

The attorney general said  that if Congress decides not to defend the law, Judge Tauro’s decision would be “the final decision,” adding, “as a practical matter in Massachusetts that would be the end of it.”

It is not yet clear what Congress intends to do.

To date, House Speaker Boehner’s office has not said if Republicans plan to defend DOMA.  But a spokesperson for the Speaker, Michael Steel, said in a statement, “While Americans want Washington to focus on creating jobs ad 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.”

US Republican Senator Scott Brown also criticized the president.  “We can’t have presidents deciding what laws are constitutional and what laws are not,” he said in a statement.  “That is a function of the judicial branch, not the executive.”

Social conservatives assailed the president, too, and pressed Boehner to defend DOMA.  As Kris Mineau, president of the local anti-gay Massachusetts Family Institute, explained, “We are shocked that the president and Attorney General Holder are refusing to carry out their constitutional duties to defend laws established by Congress,” adding, “They are trying to strike down” DOMA “in its totality,” he said quoted in the Boston Globe.

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DOMA continued

But politically, defending DOMA might well be a loser for the Republicans, with recent polling in New Hampshire, for example, showing even people who are against gay marriage consider it a low priority right now.  If Republicans bang the drums against marriage, it will take them even further off message about jobs and the economy, some political observes say.

Throughout the two years of his presidency, Obama has wrestled with marriage equality, saying through various spokespersons and policy advisors that while he supports civil unions, he does not favor same-sex marriage, but that his view is evolving.  As recently as last week, White House press secretary Jay Carney said Obama is still “grappling” with the issue.

For some time, the president has also said  that DOMA is discriminatory and that it should be repealed, but until now has continued to defend the law in court.

Meanwhile, Governor Deval Patrick voiced praise for Obama’s change of legal posture.  “I am tremendously heartened today by President Obama’s decision to turn away from this divisive and unfair law,” he said in a press release.  “In Massachusetts, we believe that every person ought to be able to marry whomever they love, and we believe the rest of the country is moving forward in that direction, too.”

For his part, Tobias Wolff, professor of law at the University of Pennsylvania, offered a legal perspective, appearing last week on MSNBC’s “The Rachel Maddow Show.”

“It’s difficult to overstate” what President Obama and Department of Justice have done, Wolff said.  “It’s going to change the tenor and perhaps the outcome of these pending lawsuits,” he added, as well as have an “impact on civil rights litigation around the country.”

Professor Wolff served as legal advisor and LGBT policy chair for the Obama 2008 campaign.