Obama Administration Refuses To Defend The Defense of Marriage Act (DOMA)

For two years, some of us have been criticizing President Obama for his Administration’s opposition to same-sex marriage and the Don’t Ask Don’t Tell policy in federal courts. The Justice Department has now announced that it has decided to reverse its position and refuse to further defend the Defense of Marriage Act (DOMA).

The Attorney General sent a letter today to congressional leadership to inform them of the change in the position of the Administration in Pedersen v. OPM and Windsor v. United States. Those cases challenge Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. Pederson was filed on November 9, 2010.

In the statement below, Holder struggles a bit to explain why it has taken two years to switch sides in court:

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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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

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. 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.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

The effort to explain the last two years is a bit forced and unpersuasive. It is unclear how the constitutionality of the Act changed in the last two years in the view of the Justice Department. Certainly a couple of district court decisions is hardly an explanation. The mid-term elections seem a bit more relevant. It is doubtful that Holder was willing to take the political risk of opposing DOMA before the mid-term elections. As on torture and the Don’t Ask, Don’t Tell policy, Holder’s actions have often been criticized as driven in these areas more by politics rather than principle. This law presents a clear question of constitutionality that has not materially changed in the last two years. The change, while welcomed, reflects inconsistency bordering on incoherence in how the Administration is approaching gay rights generally.

The line on the participation of Congress would seem to say that the Justice Department will support the selection of a special counsel to fight for the Act (and by extension the legislative branch). We could then have the legislative and executive branches speaking with two different voices before the federal court and potentially before the Supreme Court. It could get quite interesting if the Supreme Court upholds DOMA and whether the Administration would change its position again — resuming defending a law that the President views as unconstitutional.

Jonathan Turley

91 thoughts on “Obama Administration Refuses To Defend The Defense of Marriage Act (DOMA)

  1. […] Section 3 of the Defense of Marriage Act, “as applied to same-sex couples who are legally marrDefense Of Marriage Act – Attorney General Eric Holder today sent a letter to House Speaker John Boehner, after determining […]

  2. “Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.”

    Hey Buddha,

    You got that list of issues through which Obama ended up using the constitution as a urinal puck by defending unconstitutional, dare I say tyrannical, policies in court?

  3. This is a political donor decision, nothing more. They won’t reverse on torture because there isn’t a rich constituency to get money from by making such a reversal.

    Very cynical people in this administration. I hope their would be donors will see through this.

  4. rafflaw,

    “Now, if we can get them to reverse their inaction on torture, it would be a great day!”

    I suspect if I hold my breath waiting for that reversal, my daughter will be planning my funeral by the end of the day.

  5. Good on you President Obama.


    So when he does bad to please his donors it’s all his fault, when he does good to please his donors it doesn’t count?

  6. Jill,
    I think we have to applaud them when they do something right and hold their feet to the fire when they don’t. I think a lot if not all of the decisions made by any President is going to have some level of political discussion involved. That is nothing new. I am not holding my breath that torture prosecutions are are on the way, but as I mentioned, it would be nice.

  7. Gyges,

    You miss an important point. Actions should be taken because they are right and will do good in the world. Otherwise, when it’s just to get money from donors, as soon as donors are no longer needed or have been sucked dry, actions can be reversed. This is what happened to most of Obama’s voters. They believed Obama would do a great number of things and thus gave him both money and time and their vote. After he won with that money and help, the progressive base was immediately dumped for the much more lucrative constituency of the MIC and financial industry. Still Obama needed the door to door work of the many to win. Once he won, their work was no longer needed and these voters desires could be discarded. Therefore, it is important to understand whether one’s candidate is doing something because they find it useful (which they may easily reverse course on later) or because they actually believe in what they are doing. It is at least necessary to know that you have given enough money (as the MIC and financial industry has) that you effectively own the candidate and do not care whether their actions are based on a sincere believe in certain core values–they will simply do as they are told, that is all.

  8. Jill,

    So, not only does he have to do the right thing, he has to do it for the right reason? How exactly do you plan on figuring out what his TRUE motivations were?

    Also, I guess that means that raises given because of union protests don’t really count. I guess that means that the Egyptian protests didn’t accomplish anything worth while either.

  9. Jill,

    I can understand your cynicism but, what rafflaw said. There is much I disagree with Obama on; there is much I agree with him on. He is criticized when need be; he is praised when need be but it appears to me based on some of your writings that regardless what he does, you will criticize him.

    His actions aren’t exclusive to him. Can name one politician who actually did every single thing they campaigned on as soon as they were elected? Once in office, I imagine the reality they face can be quite different than what they thought they knew on the campaign trail.-

    Your choice but doesn’t it get exhausting being in such a critical funk all the time?

  10. Gyges,

    You are speaking of apples and oranges. True motivations may be discerned by consistent actions.

    The wages earned by union and the Egyptian people’s protests were not actions taken by a supposedly “magnanimous” “leader” who all of a sudden starting caring about the welfare of the people. They were ripped from the hands of the powerful. It isn’t difficult to see how cases such as these are different. There are real distinctions to be made. We make distinctions in motivation and situations every day. The actions of this president are not one’s we are unable to perceive.

  11. S.L.,

    I am not playing your game. You will have to take on my arguments and show me why I am wrong. Otherwise, I will know you don’t have counter arguments.

  12. Is Obama setting a bad precedent? What happens when a Republican DoJ refuses to defend the constitutionality of the health care reform act?

  13. Jill,

    Look, I didn’t piss in your Cheerios so take your attitude and stick it where the sun don’t shine.

    I think I addressed it quite well as it is. My post stands, Ms. Happy.

  14. To Buddha and Jill:

    In Re: ““Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.”

    I’m 95% sure that I saw Obama claim in an interview that the reason he and his justice department defended the DADT laws in court was that he doesn’t get a choice what laws he will or will not defend. Given the fact that the Executive enjoys the same discretion as a prosecutor in any state enjoys, we, or at least I, knew he was full of shit–as shown by the above quote.

    With that in mind, let’s refresh our recollection of the items on the “Obama Duplicity List.”

    So, what are the issues that Obama deems constitutional based on the fact that he has CHOSEN to defend them?

    Warrantless wiretapping?

    Executive assassination orders?

    Suspending habeas corpus sans insurrection or rebellion?

    Shall we deem him defending the policy of torture by defending those who engaged in such action?

    Again since Obama has shown that he will choose not to defend legislation/policies that he deems unconstitutional, likewise, he finds the policies above constitutional by virtue of the fact that he chooses to defend them.

  15. Jill,

    “Actions should be taken because they are right and will do good in the world.”

    Since there’s no caveat, I assumed you meant all actions.

    I’m no fan of President Obama. In fact, unless he makes several large policy changes, I’m not going to vote for him. However, I’m willing to give credit where credit is due.

    He’s doing a good thing here, and I don’t really care if he’s doing it because he feels it’s right or doing it to please people who support him. The action itself is good. That’s enough for me to praise it.

  16. Jill,
    I stated that every President takes politics into account when he/she are making a decision. I don’t like it, but it is reality. I agree with Bob, Esq.s listing of items that Obama has faltered, failed, bailed on. I still think this decision was the right one, even if it is late and/or politically motivated. You mentioned it was the expedient choice. I am not sure that is accurate. It will bring him up for Republican criticism, which is normal, and it will piss of the Dems or Independents that are anti-gay marriage. So I am not so sure it is the best decision for him politically, except for the progressive base or wing of voters who expected this long ago.

  17. Gyges,

    I’m not telling you what you should think or do. If you’re happy, then be happy. I agree that this will help other people, even if done for extremely cynical motivations. What I’m not clear about is why you and others believe I may not examine the reasons why this step was taken. Because it was taken as a matter of expediency, I won’t praise it. This isn’t the same thing as denying it will help people. It’s saying, motives matter and they need to be watched carefully. Just today the king of Saudi Arabia did some really nice things for his population. Will those things benefit people there? Yes. Should I praise his munificence? No!

    I think Bob Esq.’s list is important as is the quote he mentions. Context is something we need to look at in every action.

  18. rafflaw,

    You need to look at his donor base. It may piss off some people but not an important group who can write rather large checks! It will also help him differentiate himself from other right wing presidential candidates. That’s where even his well-heeled donors need to pay attention to motives. If actions aren’t sincere and you don’t contribute enough to keep from being thrown under the bus, when the time is right, you will be thrown under the bus!

    Remember, Obama cut off funding for poor and disabled women’s health insurance plans that paid for abortions. Yet many women believe he is pro-woman because they personally will not be in the position of other women who can’t get abortions due to Obama’s ruling.

  19. Jill,
    I stated above that all decisions include politics for Presidents. The cut off of funding that you are talking about, are you referring to his budget proposal?
    I think you are guessing that the big money people are just the ones who agree with this decision. You may be right, but the Blue dog dems have some big dollars behind them too.

  20. This one rafflaw: “Women’s and reproductive rights groups are condemning the Obama administration’s decision to exclude abortion coverage from a new high-risk insurance plan created under the health reform law. Planned Parenthood, the National Organization for Women, the Center for Reproductive Rights, and NARAL Pro-Choice America have all assailed the move.”

    No, the real big money people are the financial industry and the MIC. They don’t need to worry about motives. Obama needs to worry about successfully pleasing them. Should he not, or should they find someone they believe will do a better job for them, he will be out of a job. Not all rich people hold the same leverage. That is because there is a difference between being rich and super rich and then again, super rich and super well connected. The merely rich must watch motivations. The super rich should still take note of them and the super rich and well connected largely don’t need to worry!

  21. Here’s Planned Parenthood’s statement: “The Obama administration has decided that no woman in the new high-risk insurance pools will be allowed to obtain abortion coverage beyond limited cases (rape, incest, endangering the life of the woman). The high-risk insurance pools are for some of the most medically vulnerable women in the country — those with pre-existing conditions such as breast and ovarian cancer, AIDS, diabetes, and other conditions that may make pregnancy extraordinarily dangerous. These women will be locked out from abortion coverage, even if they pay for it out of their own pockets.”

  22. Jill,
    Thanks for reminding me on the high risk insurance pool and abotion issue. I had forgotten about that. Once again, you may be right about the money issues, but he will catch flak no matter what he decides on the issue of gay marriage. I can’t believe that the Financial industry types would be in favor of this decision. I am just glad that our justice department isn’t wasting time anymore on defending the DOMA.

  23. rafflaw,

    The financial industry could care less about this ruling. But I’m in complete agreement with you that I’m also glad the DOJ isn’t wasting time and money on defending DOMA. I think every lesbian and gay person has a right to be married! Of course, Canada has fallen apart ever since they legalized gay marriage and I expect the US will get hurricanes, terrorist attacks and the like now for sure– but what the hell! :)

  24. Jill: Here’s Planned Parenthood’s statement: “… These women will be locked out from abortion coverage, even if they pay for it out of their own pockets.” ”

    Or their lives.

  25. Lottakatz,

    It will be with their lives. You’re right about that. I also liked what you wrote yesterday on a different thread–to the effect that we worry so much about future elections that we fail to address what is happening in the present. I didn’t put that as well as you did, but I really think it’s true and it’s a big mistake that we make over and over again.

  26. The meltdown on the Ridiculous Right begins …

    The right responds to Obama decision on DOMA
    By Alex Pareene

    President Barack ObamaAs of 3:30 p.m. EST, there were seven separate posts on National Review Online’s The Corner about the Justice Department’s decision to stop defending the Defense of Marriage Act. (For reference, the name “Koch” does not appear once on the blog’s front page.) They are… not thrilled, for the most part.

    Daniel Foster posted first, with commentary-free link to the news itself and the full text of the Justice Department’s letter to Congress.

    “Marriage Law Foundation” director William C. Duncan was the first to weigh in with an opinion. He seems unhappy. “There is something about the marriage issue that provokes an ‘any means necessary’ approach from its proponents,” he writes, which may be because its proponents consider it a fundamental civil rights issue.

    He adds more “initial reactions,” including: “The DOJ (and the president) are attempting to unilaterally amend the Constitution to add a sexual-orientation discrimination clause.”

    Next up is the delightful Maggie Gallagher, professional opponent of gay rights:

    We’re seeing a pattern to how Democrats respond to election losses: do an end-run around democracy. You can’t block a union bill? Flee the chambers. You can’t repeal DOMA? Declare orientation a protected class all on your own. This tactic may backfire, however: It opens up the pathway for the House to intervene to defend the law.

    Two wildly disparate things that happened months after the last election make up a “pattern” now, FYI.

    Continue reading
    Stanley Kurtz has his own theory: “This is a political move designed to distract attention from debates on public-sector unions and the budget that are not going the president’s way.” (Last I checked, most Americans were on the president’s side in the union “debate.”) The good news, though, is that this decision means the president will soon drop his “centrist persona” and reveal himself to all as a dedicated leftist “Radical-in-Chief”:

    Did anyone on any part of the political spectrum ever actually believe that Obama opposed gay marriage? That was never anything but disguise. This new move suggests that the centrist mask is slipping, the country is polarizing, and Obama is being forced to fly his true flag. I don’t doubt that the president will continue to resist full disclosure of his leftist political allegiances. Yet that is the direction in which he is now being pulled.

    This raises some interesting questions about the construction of identity — how radical is a radical who hides his radicalism so well that he never does anything radical? — but I am looking forward to when the president can finally let the mask slip and embrace polyamorous collectivism, or what-have-you.

    Shannen Coffin, former Bush administration Deputy Assistant Attorney General and general counsel to gay marriage supporter Dick Cheney, does not believe that Obama can possibly be personally “grappling” with the issue of gay marriage, because his Justice Department’s “constitutional analysis is really policy dressing itself up as law.” Plus they never even tried that hard to defend opposite marriage. They didn’t even use the best and most convincing arguments!

    For instance, as Attorney General Holder’s letter admits, the department had already deemed legally undignifiable the argument that heterosexual marriage serves a procreative function necessary for an ordered society, so the AG and the White House instructed Civil Division lawyers simply not to advance that highly credible argument because, in the view of political appointees, more modern social science did not bear it out.

    Right. Ok, well, the “procreative function” of marriage certainly is a really good argument for banning gay marriage, until you ask if that means that the government should also ban marriage between old people and the infertile.

    Ramesh Ponnuru says the president is a lying liar:

    Stanley Kurtz writes, “Did anyone on any part of the political spectrum ever actually believe that Obama opposed gay marriage?” My guess is that the answer is yes, millions of people heard him and assumed he was telling the truth. That is, after all, why he said what he did.

    This would be a good gotcha if the president had actually announced that he now personally supports gay marriage. It would be an even better gotcha if Obama hadn’t campaigned on repealing DOMA.

    Andrew McCarthy takes a break from insinuating that they’re all in cahoots with radical violent extremists to praise the DOJ for “openly [advocating] for the outcome desired by Obama’s base” instead of “sabotaging” legislation by purposefully “steer[ing] the case toward the radical outcome the Obama base desires….”

    Where all of us saw the Obama administration defending an odious law he promised to repeal, conservative legal activists saw sabotage and skulduggery! If you had just used our foolproof legal arguments about the grossness of gays, they all seem to be saying, no judge in the country would let a homo so much as buy his boyfriend a promise ring. Now, though… Cats and dogs, living together, because Eric Holder refused to repeat their hand-scrawled talking points about how things worked on the Ark.

    Alex Pareene writes about politics for Salon. Email him at apareene@salon.com and follow him on Twitter @pareene More: Alex Pareene


  27. Of course Planned Parenthood opposed the Stupak amendment to the health care bill in 2009. It is more than a stretch to think Planned Parenthood is in opposition to Obama when his only primary opponent is pro life activist Randall Terry.

  28. Swarthmore and Stamford,
    Great links. When the Right’s collective heads are exploding, you know that Obama has done something correct. This Huckabee character is fast becoming the friendlier Sarah Palin. Broken homes and gay marriage are conncected? Really. I guess Huckabee thinks that the 50% divorce rate among heterosexuals has no effect on broken homes! What an idiot.

  29. rafflaw,

    When the Massachussetts Supreme Court ruled that gay marriage was constitutional back in 2006, I waited for the mass exodus of straight couples out of Massachussetts into Connecticut in order to save their hetero marriages from those gay and lesbian couples getting married. I’m still waiting.

    When the Connecticut Supreme Court ruled that gay marriage was constitutional back in 2008, I waited for the mass exodus of straight couples out of Connecticut into New York, New Jersey and Rhode Island in order to save their hetero marriages from those gay and lesbian couples getting married. I’m still waiting.

    Remember, Huckleberry also said in 2008 that “[Some of my opponents] do not want to change the Constitution, but I believe it’s a lot easier to change the constitution than it would be to change the word of the living God, and that’s what we need to do is to amend the Constitution so it’s in God’s standards rather than try to change God’s standards.”

    Like a typical fundie, he ignores simple, basic facts … he’s talking out of his hind-quarters.

  30. Stamford,
    You are too polite. Huckelberry Hound gets my standard question that I ask of all religous right people who want to replace civil law with biblical law. WWJD?

  31. rafflaw,


    Deflect the question like all fundies do.

    Hey, did you hear a “pop” about 10 minutes ago? It was my head exploding after I heard John of Orange’s response to DOMA being unconstitutional:

    “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.”


    He must have severe back pain from lugging those HUGE brass ones he’s got.

  32. rafflaw,

    Nope. All me.

    Well, we ARE expecting heavy downpours here tomorrow so I suspect it’s his tears making its way up the coast from DC :D

  33. Nal 1, February 23, 2011 at 3:27 pm

    Is Obama setting a bad precedent? What happens when a Republican DoJ refuses to defend the constitutionality of the health care reform act?


    I think that you bring up a salient question….even though the DOMA was passed under Clinton I believe it has been manipulated by the far right….. Again, I will say that is the best and scariest question today…..

  34. Again since Obama has shown that he will choose not to defend legislation/policies that he deems unconstitutional, likewise, he finds the policies above constitutional by virtue of the fact that he chooses to defend them.

    I’m a little late to the party but that sums it up for me.
    How could this man be so different then portrayed.

    It don’t matter we’re all going to hell in hand basket.
    All that talk a couple of years ago about people being in the streets and cities rebelling, special Army teams, highly trained in the latest non lethals ect ect. Doesn’t seem to far fetched to me anymore. The ground over the whole earth is shaken right now.
    I take the earthquake at Christchurch to be a sign.

  35. “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.”


  36. Bob, I’ve just e-mailed you a response and posted it here as well, but the number of links assures it is in moderation.

  37. Bob,

    Orange Julius are awesome. They are very hard to find now though. I knew of one in KC but it closed about five years ago. In the mean time, try this:

    6 oz. frozen orange juice concentrate
    1 cup milk
    1 cup water
    1/2 cup sugar (or half and half sugar and confectioners sugar – makes it creamier)
    1 tsp. vanilla extract
    8-9 ice cubes

    1. Combine all ingredients except ice cubes in blender.
    2. Blend for about 1-2 minutes, adding ice cubes one at a time.

    From: http://paulmayne.org/blog/2005/10/orange-julius-recipe/

  38. Buddha and Bob,

    A good number of the Dairy Queens around here share space with OJ. Personally, I’d like to see an OJ with a liquor license. That would be one heck of a screwdriver.

  39. Gyges,

    “Personally, I’d like to see an OJ with a liquor license. That would be one heck of a screwdriver.”

    No license, but I’ve done that combo self service.

    It is very nice.

  40. Buddha just curious. I normally make fruit smoothies for all the kids by just making a simple syrup, fruit and adding the different flavors of Ocean Spray or Juicy Juice products. The kids ask me to make them all the time. I never tried milk with fruit when making smoothies but know it’s done. Is there any fruit that shouldn’t or can’t be mixed with milk. Once it goes in the kid there ain’t but two ways it’s coming back out. :)

  41. Bdaman,

    I’m not sure to be honest. I’m kind of a traditionalist on this issue with plain ol’ orange being my preference. I’d probably stay away from papaya and dairy though. It has some enzymes in it that are reactive in the digestive tract. I don’t know for a fact it would cause a problem, but given the “two exits, no waiting” issue, better safe than sorry.

  42. Buddha,

    “Orange Whip? Orange Whip? Three orange whips.”

    That’s one of two drinks I always look for in those “bartender guides” the other is “Vodka Blush.” Which as near as I can tell is the only drink recipe on the Church of Satan’s website.

  43. Buddha,

    You’re a god! Thanks for the recipe. Oh, and check your email.


    Thanks for the Dairy Queen tip; only problem is when I search for the nearest store, they all wind up as being 20-30 miles away — ACROSS LONG ISLAND SOUND in CT.

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  59. My biggest downside to this system is it doesn’t seem to function also as other vaporizers.
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