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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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
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.
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.
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.
Is Obama setting a bad precedent? What happens when a Republican DoJ refuses to defend the constitutionality of the health care reform act?
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.
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.
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?
Well…one thing…. Now waiting on No. 2…..
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.
rafflaw,
They are not doing right, they are doing what is expedient. See what I wrote to Gyges.
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.
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.
Good on you President Obama.
Jill,
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?
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.
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.
Bob,
Sorry, not yet. Been out running errands. I’ll get it to you some time today though.
“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?
I am with you Stamford. Better late than never. Now, if we can get them to reverse their inaction on torture, it would be a great day!
While this should have been done two years ago, I guess better late than never.