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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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
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.
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.
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. 🙂
Canada, U.S. agree to use each other’s troops in civil emergencies.
http://www.canada.com/topics/news/story.html?id=403d90d6-7a61-41ac-8cef-902a1d14879d&k=14984
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.
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.
Even Glenn Greenwald is singing Obama’s praises today.
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/
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.
“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.”
riiiiiiiiiiiiiiiiiiiiight…………………..
Stamford,
Keep that rain or tears up in D.C.!
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.
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?
Nal,
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…..
Conjugal visits in prisons will be interesting.
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 😀
Stamford,
I thought the pop was thunder! Did boehner start crying again?
rafflaw,
“WWJD”
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.
Whatever happened to Orange Julius? I have such a craving for one right now.
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?
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.