Wednesday, February 23, 2011

Obama DOJ Drops Federal Definition Section of DOMA

"Love won't take no for an answer."

The Attorney General has announced the Justice Department's conclusion that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional, so they will not defend it, but they will still enforce it.  Well, actually, they concluded this as applied to same-sex couples who have legally married, so I suppose they could still defend it to refuse federal recognition to a lawfully entered plural marriage from some country that allows them.  But this is huge news!

The U.S. Court of Appeals for the Second Circuit had not decided how deferentially or skeptically laws that discriminate on the basis of sexual orientation should be reviewed by courts under the constitutional guarantee of equal protection of the laws (the "level of scrutiny" issue).  This, Attorney General Holder has explained in a letter to Congress (here and here for the AG's statement about the decision), led to a review of this question.  Having decided that something more than minimal "rational basis" review is required, the Administration has concluded that DOMA Section 3 cannot meet heightened scrutiny.  Interestingly, the letter relies on the Don't Ask, Don't Tell Repeal Act in support of its conclusion that sexual orientation discrimination warrants heightened equal protection scrutiny.

The letter does not explain why it stops short of calling for the type of strict scrutiny used for racial discrimination, instead applying the same kind of intermediate scrutiny used in sex discrimination cases; perhaps the answer is that the more deferential intermediate scrutiny (which they call "heightened") is sufficient to invalidate Section 3 as applied to legally married same-sex couples, so they did not have to decide whether the most skeptical standard (strict scrutiny) is required.

However, while the Administration has concluded that it will not defend DOMA Section 3 against heightened scrutiny, it will continue to enforce the measure while it is still on the books, "unless and until Congress repeals Section 3 or the judicial branch [read, the Supreme Court of the U.S.?] renders a definitive verdict against the law’s constitutionality."

[Edited to include sentence about Don't Ask, Don't Tell Repeal Act.]
[Edited to include link to Attorney General Holder's statement, not just the letter to Congress]


  1. On further reflection, I think that one *possible* reason for the U.S. continuing to enforce the act and remaining a party in the lawsuits *could* be to assure that the case could go up to the Supreme Court to get the "definitive" judicial resolution for which Obama says he is looking.

  2. In AG Holder's letter to Speaker Boehner he says that the Administration is still enforcing DOMA because of their long-standing tradition of enforcing statutes duly enacted by Congress.

    The curious part of the decision is that it leaves the U.S. as a party to the lawsuit, but not a defendant. Does that mean if Congress intervenes that the DOJ would OPPOSE them in Court or would they leave it up to GLAD (in the Gill case) and the other plaintiffs?

  3. Actually, the US remains a defendant, they just will not present arguments in defense. It remains to be seen whether DOJ would actively attack the law assuming the Senate and/or (more likely) House jump into the Second Circuit suits to defend DOMA.

    Gill is in the First Circuit, so DOJ will continue to argue there that Section 3 of DOMA survives rational basis review. This letter is about the new suits filed in the Second Circuit, which has not ruled on the standard of review (rational basis review, intermediate (or "heightened") scrutiny, or strict scrutiny).