(Official White House Photo by Pete Souza)
This is HUGE. President Obama and Attorney General Eric Holder just released two letters telling their attorneys to stop defending the Defense of Marriage (DOMA) in two cases now in federal court. They want the cases to be considered under “heightened scrutiny” in every Circuit court, which means the Obama administration now essentially wants gays to be treated as a protected class, a minority.
“The administration has also taken the position that discrimination on the basis of sexual orientation requires heightened constitutional scrutiny — that antigay laws are presumptively unconstitutional. It is difficult to overstate the importance of this act of statesmanship by the President and the Attorney General,” says Pennsylvannia Law Professor Tobias Barrington Wolff.
Please see the official statements, reaction and background below.
STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT
WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:
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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.
__________________________________________________________________________
FOR IMMEDIATE RELEASE AG
WEDNESDAY, FEBRUARY 23, 2011 (202) 514-2007
WWW.JUSTICE.GOV TDD (202) 514-1888
LETTER FROM THE ATTORNEY GENERAL TO CONGRESS ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT
WASHINGTON – The Attorney General sent the following letter today to Congressional leadership to inform them of the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. A copy of the letter is also attached.
The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003). Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
Application to Second Circuit Cases
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 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 Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the 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.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr.
Attorney General
______________________________________
i DOMA Section 3 states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
ii See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).
iii While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) (“Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowers, 478 U.S. at 192)).
iv See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266–67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
v See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in “responsible procreation and child-rearing.” H.R. Rep. No. 104-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.
vi See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).
vii See, e.g., H.R. Rep. at 15–16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that most people . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many people . . . think is immoral”); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage—procreation and child-rearing—are “in accord with nature and hence have a moral component”); id. at 31 (favorably citing the holding in Bowers that an “anti-sodomy law served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable”); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that “[t]his Court has no business . . . pronouncing that ‘animosity’ toward homosexuality is evil”).
# # #
THIS IS FROM THE HUMAN RIGHTS CAMPAIGN:
Administration Drops Defense of Discriminatory DOMA Law
HRC praises move as rare and extraordinary step for same-sex couples and their families
WASHINGTON – The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender civil rights organization, today praised the Obama Administration’s decision not to continue its defense of the so-called “Defense of Marriage Act” (DOMA) in court. DOMA denies federal recognition and benefits to legally married same-sex couples and purports to allow states to deny recognition to those couples as well.
“This is a monumental decision for the thousands of same-sex couples and their families who want nothing more than the same rights and dignity afforded to other married couples,” said HRC President Joe Solmonese. “As the President has stated previously, DOMA unfairly discriminates against Americans and we applaud him for fulfilling his oath to defend critical constitutional principles.”
HRC has engaged in an effort to encourage the administration to abandon its defense of the statute for years, including writing to the President directly and encouraging our members and supporters to contact the administration as well.
Under federal law, the Department of Justice must report to Congress its intent not to defend the statute and it is likely that anti-LGBT leaders in Congress will take up its defense.
“Congressional leaders must not waste another taxpayer dollar defending this patently unconstitutional law,” said Solmonese. “The federal government has no business picking and choosing which legal marriages they want to recognize. Instead Congress should take this opportunity to wipe the stain of marriage discrimination from our laws.”
DOMA, passed in 1996, denies married same-sex couples over 1,000 rights, benefits and responsibilities tied to marriage under federal law. These include Social Security survivors’ benefits, family and medical leave, equal compensation as federal employees, and immigration rights, among many others.
Background memo pdf: http://www.hrc.org/documents/DOMA.pdf
Information on HRC’s blog: http://www.hrcbackstory.org/2011/02/decision-time-obama-administration-faces-new-legal-question-in-same-sex-marriage-lawsuits/
The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.
REACTION FROM FREEDOM TO MARRY:
President Calls for Heightened Scrutiny in DOMA Litigations; DOJ Will Not Defend Discriminatory Law
(New York, NY, February 23, 2011) – Today the Obama Administration called for heightened scrutiny in the federal lawsuits challenging the so-called “Defense of Marriage Act” and called on the Department of Justice not to defend the discriminatory law. Below is a statement from Evan Wolfson, President and Founder of Freedom to Marry, the campaign to win marriage nationwide:
“Freedom to Marry applauds the President and the Attorney General for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional, recognizing that discriminatory laws like so-called DOMA must be looked at with skeptical eyes, not rubber stamped.
“The Administration today acknowledges that there is no legitimate reason for this discrimination and therefore it cannot be defended under the Constitution. This a momentous step forward toward Freedom to Marry’s goal of ending federal marriage discrimination and fully protecting all loving and committed couples.”
Freedom to Marry is the campaign to win marriage nationwide. We are pursuing our Roadmap to Victory by working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. We partner with individuals and organizations across the country to end the exclusion of same-sex couples from marriage and the protections, responsibilities, and commitment that marriage brings.
UPDATE (9:51AM PACIFIC) FROM THE NEW YORK TIMES:
Suits on Same-Sex Marriage May Force Administration to Take a Stand
By CHARLIE SAVAGE
WASHINGTON — President Obama has balanced on a political tightrope for two years over the Defense of Marriage Act, the contentious 1996 law barring federal recognition of same-sex marriages. Now, two new federal lawsuits threaten to snap that rope out from under him.
Mr. Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal the law. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose suits seeking to strike the law down as unconstitutional.
The two lawsuits, however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.
That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation.
“Now they are being asked what they think the law should be, and not merely how to apply the law as it exists,” said Michael Dorf, a Cornell University law professor. “There is much less room to hide for that decision.”
James Esseks, an American Civil Liberties Union lawyer helping with one case, said the new suits could be game-changing.
The Obama legal team has not yet decided what path to take on the lawsuits, according to officials who spoke on the condition of anonymity about the internal deliberations. But the Justice Department must respond by March 11. The debate has arisen at a time when Mr. Obama has signaled that his administration may be re-evaluating its stance.
As a candidate, Mr. Obama backed civil unions for gay people while opposing same-sex marriage. But last month, after Congress — in the final hours before Republicans took control of the House — repealed the law barring gay men, lesbians and bisexuals from serving openly in the military, he told The Advocate, a magazine that focuses on gay issues, that his views on marriage rights “are evolving.”
“I have a whole bunch of really smart lawyers who are looking at a whole range of options,” Mr. Obama said, referring to finding a way to end the Defense of Marriage Act. “I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible.”
Since 2003, when the Supreme Court struck down laws criminalizing gay sex, the legal landscape for same-sex marriage has shifted. Eight states now grant marriage licenses to same-sex couples or recognize such marriages if performed elsewhere. But under the Defense of Marriage Act, the federal government cannot recognize those relationships.
That has raised a crucial question: Is it constitutional for the federal government to grant certain benefits — like health insurance for spouses of federal workers, or an exemption to estate taxes for surviving spouses — to some people who are legally married under their state’s laws, but not to others, based on their sexual orientation?
The Constitution declares that everyone has a right to equal protection by the law. But many laws treat some people differently from others. Courts uphold such policies as constitutional if they can pass a test showing that the discrimination is not invidious.
A law singling out an ordinary class — like owners of property in a district with special tax rates — gets an easy test. It is presumed valid, and a challenge is dismissed unless a plaintiff proves that the law advances no conceivable rational state interest.
But a law focusing on a class that has often been subjected to unfair discrimination — like a racial group — gets a hard test. It is presumed invalid and struck down unless the government proves that officials’ purpose in adopting the law advances a compelling interest.
Gay-rights groups contend that the marriage act ought to be struck down under either test. Last year, a federal judge in Massachusetts agreed, saying it was unconstitutional even under the easy test’s standards.
But the Obama administration, which appealed that ruling, contends that a plausible argument exists for why the act might be constitutional. Justice Department officials say they have a responsibility to offer that argument and let courts decide, rather than effectively nullifying a law by not defending it.
Justice officials have argued that the marriage act is justified, under the easy test’s standards, by a government interest in preserving the status quo at the federal level, allowing states to experiment. And in its brief appealing the Massachusetts ruling, the department stressed seven times that a “binding” or “settled” precedent in that circuit required the easy test.
But for the new lawsuits, no such precedent exists. The Obama team has to say which test it thinks should be used. Courts give a class the protection of the hard test if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it.
But under a hard test, the administration’s argument for upholding the marriage law would be weaker, legal specialists say, in part because when lawmakers enacted it in 1996, they mentioned only in passing an interest in preserving the federal status quo as states experimented.
Some conservatives have accused the administration of throwing the fight by not invoking other arguments, like morality. And in particular, lawmakers’ primary focus in 1996 was “encouraging responsible procreation and child-rearing.”
But the administration’s filings in other cases disavowed that rationale, noting that infertile heterosexuals may marry and citing studies that children raised by same-sex parents are as likely to be well-adjusted as those raised by heterosexuals.
M. Edward Whelan III, a former Bush administration lawyer, said the Obama team’s rejection of the children-based rationale amounted to “sabotage.”
Another possible path, legal specialists say, would be to urge the judges to adopt the easy test because courts elsewhere have done so, without laying out any full legal analysis of how to think about gay people as a class.
Gay-rights supporters, however, call that option dishonest: those cases largely derived from decisions before the Supreme Court’s 2003 sodomy ruling. The premise that it was constitutional to criminalize gay sex short-circuited appraisal of protections for gay people from lesser forms of official discrimination.
“We think there is only one answer the government and the court can come to if they apply the test conscientiously, and that is that the government must have to prove why it needs to treat gay people differently,” said Mr. Esseks, the A.C.L.U. lawyer.
“And if the government has to have a real reason, as opposed to a made-up reason, we don’t think there is any way that the government wins.”
John Schwartz contributed reporting from New York.
This article has been revised to reflect the following correction:
Correction: February 2, 2011
An article on Saturday about a debate within the Obama administration over legal challenges to the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, misstated one of the factors considered by judges in discrimination cases. They are more likely to strike down a law if it discriminates against a class of people (for example, a racial minority) who cannot choose to leave the class— not people who have the option of leaving it.
(Front page Official White House Photo by Pete Souza)
Lambda Legal Applauds DOJ Announcement that it Will No Longer Defend “Defense of Marriage Act”
“The President and the Attorney General recognized today what we have been saying in court since the day we opened our doors: Discriminating against people on the basis of sexual orientation should be presumed to be unconstitutional and unconstitutional laws should not be defended. It is past time for DOMA to become only an ugly part of our nation’s history.”
(New York, February 23, 2011) – After the Department of Justice announced that it will no longer defend the so-called “Defense of Marriage Act” in court, Lambda Legal issued the following statement from Legal Director Jon Davidson:
“This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people. The President and the Attorney General recognized today what we have been saying in court since the day we opened our doors: Discriminating against people on the basis of sexual orientation should be presumed to be unconstitutional and unconstitutional laws should not be defended. It is past time for DOMA to become only an ugly part of our nation’s history.
“We are proud of our part in the precedent setting cases leading to today’s announcement. Both Romer v. Evans and Lawrence v. Texas are landmark U.S. Supreme Court cases litigated by Lambda Legal that established among other things that the equal protection guarantee in the federal Constitutional applies to gay people. The Attorney General expressly relied on these cases in his letter to Congress explaining why laws discriminating against people based on their sexual orientation are suspect and that the so-called DOMA is unconstitutional.
“While the so-called DOMA is very clearly crumbling it is not yet gone. The executive branch will continue to enforce it until it is repealed by Congress or struck down by the courts. We will continue our efforts to dismantle this law, along with all other laws that discriminate based on sexual orientation. Today’s action by the President and the Department of Justice hastens the day when those laws will no longer stain our nation.”
UPDATE 11:15AM PACIFIC: EQUALITY MATTERS PRESS RELEASE AND SUMMARY OF DOMA-RELATED REMARKS AND MARRIAGE FIGHT UPDATE:
*THE DEPARTMENT OF JUSTICE WILL NO LONGER DEFEND THE SO-CALLED DEFENSE OF MARRIAGE ACT**
STATEMENT BY EQUALITY MATTERS PRESIDENT RICHARD SOCARIDES: “This is a very significant and welcomed development. I commend the President on his bold leadership. It means that the discriminatory and harmful Defense of Marriage Act is on its last legs. The federal government is one big step closer to providing equal rights and responsibilities to loving and legally married same-sex couples. This is an important moment in the struggle for full equality and the President deserves a lot of credit.”
THE CHANGING LANDSCAPE FOR MARRIAGE: “It is clear to an increasing majority of Americans that we should no longer deny the right to marry to any of our citizens. The signs are very good in Maryland with the state senate expected to pass a marriage bill as early as tomorrow, making it our sixth state where all Americans are allowed the rights and responsibilities of marriage. Maryland can provide important momentum for New York, which may be next, before the summer, if Gov. Cuomo gets his way. And Rhode Island is possible this year too,” said Equality Matters President Richard Socarides.
WHAT THE PRESIDENT TOLD KERRY ELEVELD LAST DECEMBER: Eleveld: “What about not defending DOMA?” The President: “As I said before, I have a whole bunch of really smart lawyers who are looking at a whole range of options. My preference wherever possible is to get things done legislatively because I think it &mdash ; it gains a legitimacy, even among people who don’t like the change, that is valuable. …That may not be possible in DOMA’s case. That’s something that I think we have to strategize on over the next several months.” Cont. reading: http://bit.ly/glyy5H
SOCARIDES IN JUNE 2009 ON OBAMA DEFENDING DOMA: “Like many other gay people who support the president, and as someone who had hoped he would be a presidential-sized champion of gay civil rights from the start, I was disturbed by his administration’s brief defending the so-called Defense of Marriage Act (DOMA), filed late last week, in opposition to our full equality.” Cont. reading: http://bit.ly/amyIUv
RECAP ON WHAT OBAMA HAS SAID ON MARRIAGE AND WHEN: –Obama told AmericaBlog’s Joe Sudbay in October: “I also think you’re right that attitudes evolve, including mine.” http://bit.ly/bHA739
–Obama told Equality Matter’s Kerry Eleveld in December: “I’m wrestling with this. My attitudes are evolving on this.” http://bit.ly/glyy5H
–ABC’s Jake Tapper later asked: “Is it intellectually consistent to say that gays and Lesbians should be able to fight and die for this country, but they should not be able to marry the people they love?” Obama: “My feelings on this are constantly evolving … I struggle with this.” http://bit.ly/gGQkeg
THE “GLITCH” WITH PRESIDENT OBAMA’S CIVIL UNIONS POSITION: Kerry Eleveld in The Washington Post:
–“There is a serious flaw in the president’s position of viewing civil unions as a path to giving same-sex couples equal relationship recognition: The federal government does not recognize civil unions for the purposes of spousal benefits. In fact, no legislation to formalize civil unions exists at the federal level.
–“That means that advocates of civil unions, Obama included, are suggesting for lesbian and gay couples a status for which the federal government has no definition and no frame of reference within its codes, and one that provides no path to legal recognition.” http://wapo.st/gADaEn
RECAP WHERE FULL MARRIAGE RIGHTS EXIST: Massachusetts, Connecticut, Vermont, New Hampshire and Iowa, as well as in the District of Columbia. In California, supporters are mounting a challenge in the 9th U.S. Circuit Court of Appeals to Proposition 8, which banned gay marriage there after it had been legal for 18 months. New York recognizes same-sex marriages performed outside the state.
HAWAII CLOSE ON CIVIL UNIONS: The Hawaii Senate voted 18-5 last Wednesday to approve a measure that would legalize civil unions for gay and lesbian couples. The measure now awaits Governor Neil Abercrombie’s signature, after which Hawaii will become the seventh state to provide civil unions to same-sex couples.
HELP MARYLAND NOW AND TAKE ACTION:
–For Maryland residents visit Equality Maryland’s site: http://bit.ly/eA4G4v
–You can also participate in Friendfactor’s Pop the Question campaign: http://bit.ly/gP9N3t
READ MORE ON RECENT MARRIAGE POLLING FROM EQM: http://bit.ly/gWE73t
–Political statistician Nate Silver reviewed key polls on gay marriage last August (http://bit.ly/dtaJwp) and wrote about America’s “shift.” A CNN poll last year (http://bit.ly/ct9IAW) was the first to find a majority of Americans support marriage for gays and lesbians.
Speaker Pérez Statement on President Obama’s Decision Not to Defend Defense of Marriage Act
SACRAMENTO – Assembly Speaker John A. Pérez (D-Los Angeles) released the following statement regarding the Obama Administration’s decision not to defend the 1996 Defense of Marriage Act:
“This is a profound decision by President Obama. He has put the Justice Department on record as calling into question the constitutionality of the Defense of Marriage Act, and has struck a significant blow to those who mask their objection to marriage equality as a defense of the constitution. I am grateful for the bold and visionary leadership the President showed today.”
Website of Speaker John A. Pérez: www.asmdc.org/speaker
National Gay and Lesbian Task Force responds to Obama administration’s decision not to defend discriminatory marriage law
WASHINGTON, Feb. 23 — The National Gay and Lesbian Task Force applauds the Obama administration’s announcement calling on the Department of Justice not to defend the discriminatory, so-called “Defense of Marriage Act” (DOMA). In a letter to Congress and a statement released today, Attorney General Eric Holder concluded that classifications based on sexual orientation warrant heightened scrutiny, and that section 3 of DOMA is therefore unconstitutional.
Statement by Rea Carey, Executive Director
National Gay and Lesbian Task Force
“The decision by the Obama administration not to defend the discriminatory, so-called ‘Defense of Marriage Act’ is a tremendous step toward recognizing our common humanity and ending an egregious injustice against thousands of loving, committed couples who simply want the protections, rights and responsibilities afforded other married couples. We thank the Obama administration for having the integrity to recognize that this law should not be defended in court. Discrimination has no place in our society, and DOMA has only served to belittle our country’s deeply held values of freedom and fairness. It’s time to end DOMA once and for all.”
To learn more about the National Gay and Lesbian Task Force, visit www.theTaskForce.org
and follow us on Twitter: @TheTaskForce.
EQUALITY CALIFORNIA RESPONDS:
This is HUGE. The Obama Administration has announced that it will no longer defend Section 3 of the federal Defense of Marriage Act in court because it is unconstitutional.
Here in California, the supporters of Prop. 8 are trying to force the people’s elected Attorney General, Kamala Harris, to appeal the federal court ruling overturning Prop. 8 — even though doing so would go against her oath to defend the United States Constitution.
They have introduced an alarming bill, SB 5, that would force the Attorney General to defend unconstitutional ballot measures that are challenged in court, as well as allow the unelected individuals who place these measures on the ballot to defend them on behalf of all Californians — something only our elected Attorney General should be able to do. It’s the latest attempt by the supporters of Prop. 8 to change the law to alter the outcome of the federal case against Prop. 8.
We have to stop this new attack on the federal case against Prop. 8, and we have to do it fast. Please give today to help us in our work to stop SB 5 and advance LGBT equality across California.
Let’s be clear: Special interest groups — whether they are anti-LGBT, anti-labor or anti-choice — shouldn’t get special rights. They do not get to play Attorney General in court when they don’t like the decision of the person the voters selected for the job.
Help us stop SB 5 and advance equality. Give today, and let your legislators know that you want them to oppose this politically motivated bill.
Equality California is working hard to defeat SB 5 and defend the power of the Attorney General’s office. At the same time we’re sponsoring 11 bills that would secure greater equality — for LGBT youth, for same-sex couples and for people across the state. We’re working hard in Sacramento for your rights. But we need your help, and the stakes are high.
Just like the Obama Administration and DOMA, our Attorney General should choose when to defend a law in court, and they should never be forced to defend a law that goes against the very Constitution they have sworn to uphold. We have to keep SB 5 from progressing. Please, give and take action now.
In solidarity,
Geoff Kors
Executive Director
Equality California
P.S. Our friends at the American Foundation for Equal Rights filed motions today demanding that all loving couples be allowed to marry immediately and urging the courts to act fast. We thank them for their leadership and for making it clear that every day that same-sex couples and their children are denied the protections and dignity of marriage is another day they are irreparably harmed. Stay tuned to your email for more news on the Prop. 8 case.
L.A. Gay & Lesbian Center Lauds White House for Leadership in Opposing Defense of Marriage Act
LOS ANGELES, Feb. 23, 2011–In response to the Attorney General’s announcement that the Department of Justice will no longer defend the Defense of Marriage Act in court, L.A. Gay & Lesbian Center CEO Lorri L. Jean issued the following statement:
“Refusing to defend the profoundly discriminatory and unconstitutional Defense of Marriage Act is exactly the kind of fierce advocacy we’ve been yearning for from our president. We thank President Obama and Attorney General Holder for their righteous and courageous decision. The Defense of Marriage Act deprives same-sex couples of the critical rights, benefits and responsibilities that straight couples rely upon.
The president joins a growing list of principled leaders from both parties, including California Governors Jerry Brown and Arnold Schwarzenegger and California Attorneys General Bill Lockyer and Kamala Harris, who refuse to defend unconstitutional laws that deny same-sex couples equal rights and benefits under the law. Even the lead sponsor of DOMA, former Congressman Bob Barr, now supports the freedom to marry for same-sex couples, as does President Clinton, who signed the bill in 1996.
A discriminatory act like DOMA has no place in a nation founded under the principles of liberty and justice for all. It callously deprives same-sex couples—even those who are legally married—of more than 1,100 federal benefits, rights and privileges, including the right to receive a deceased spouse’s Social Security benefits. Discrimination in Social Security benefits alone costs older LGBT taxpayers more than $120 million each year! That’s why we’ve worked with Congresswoman Linda Sanchez to introduce the Social Security Equality Act.
Today’s decision is an important step in ending the second class citizenship endured by LGBT Americans.”
- 30 -
About the L.A. Gay & Lesbian Center
For more than 40 years, the L.A. Gay & Lesbian Center has been building the health, advocating for the rights and enriching the lives of lesbian, gay, bisexual and transgender people. Our wide array of services and programs includes: free HIV/AIDS care and medications for those most in need; housing, food, clothing and support for homeless LGBT youth; low-cost counseling and addiction-recovery services; essential services for LGBT-parented families and seniors; legal services; health education and HIV prevention programs; transgender services; cultural arts and much more. Visit us on the web at: www.lagaycenter.org.
Robin Tyler and Diane Olson, the original plaintiffs in the Same-sex Marriage case that brought
marriage equality to California react to President Obama saying the Justice Department will
not defend DOMA.
“We are ecstatic that the President has declared the Defense of Marriage Act unconstitutional.
As a married couple, the fact that we are being denied Federal benefits and that this
administration finally has said that denying Federal benefits is not ‘equality under the law’
is a huge step forward,” says Diane Olson.
Robin added “I wept when I heard the news. I now am beginning to believe that within my lifetime,
Diane and I will gain Federal recognition. I believe that the President’s decision
was due to activism on the streets, and advocacy in the courts and the political system.
We alternate between laughing and crying. Now, the 9th circuit should immediately
grant the right to marry in California and overturn Prop 8.
We truly believe this is the beginning of the end of accepting that kind of bigotry.
We must not only tell the next gay generation that it gets better, but we must make
it better. Today was a huge win.
Williams Institute Experts Comment on Department of Justice DOMA Decision
In light of the announcement today from Attorney General Eric Holder that the Department of Justice will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), experts at the Williams Institute provide legal analysis and new research on the number of married same-sex couples in the United States.
“Today’s decision by President Obama is a landmark moment in the history of the LGBT rights movement. For the first time, a US President and his administration have formally acknowledged that sexual orientation should be treated with heightened scrutiny. By taking this position, the Administration indicates not only that DOMA is unconstitutional, but that virtually all forms of discrimination against LGBT people are. The legal history of the LGBT rights movement is filled with a long line of cases listing the federal government as defendant; at least under this Administration, that line has been broken.”
– Brad Sears, Executive Director, The Williams Institute
“If the federal government recognizes legal marriages by same-sex couples, between 50,000 and 80,000 same-sex couples would be recognized for purposes of federal law. These couples would be treated as married by the tax code, social security programs, federal employee benefits, and many other programs. If civil union-like relationships are also included, another 85,000 same-sex couples would also be covered by those programs.”
- Lee Badgett, Research Director, The Williams Institute
Williams Institute Research has shown:
• Approximately 50,000 same-sex couples have married, based on the number of couples who have married in Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire, according to administrative data from those states, and used estimates for same-sex couples marrying in California and the District of Columbia.
• A previous study of same-sex couples conducted last year estimated that 80,000 same-sex couples reported being legally married. This suggests that as many as 30,000 same-sex couples might have married in other countries, most likely in Canada.
• Another 85,000 same-sex couples have entered civil unions or domestic partnerships (i.e. those statuses with the same state rights and obligations of marriage) in Vermont, California, New Jersey, Oregon, New Hampshire, Washington, and Nevada.
• Altogether, these figures suggest that 9% of same-sex couples have married in the United States, along with as many as 5% more in other countries; and 15% are in civil union-like legal relationships.
• Altogether, 28% of the 581,300 same-sex couples in the United States are in legally recognized relationships that are marriages or a state-level equivalent.
FAMILY RESEARCH COUNCIL: Obama Comes Out of the Closet on Marriage
In 2009, Barack Obama took an oath–witnessed in person by more than two million people–to defend the Constitution. Today, he shrugged off that vow in plain sight of the country he swore to lead. In a shocking turn of events, the President has unilaterally decided that America ‘s marriage law is unconstitutional and ordered his administration to stop defending at all costs. In an announcement made earlier this afternoon, Attorney General Eric Holder confirmed that his department will abdicate its responsibility to fight for the Defense of Marriage Act (DOMA) by abandoning it in the courts. According to the Justice Department’s own statement, “After careful consideration, including a review of my recommendation… the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional… ”
Holder, who says he “fully concur[s] with the President’s determination,” has given the order for DOJ attorneys to cease and desist. ” The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes,” Holder insists, “if reasonable arguments can be made in their defense.” The Department does not, however, consider the argument for man-woman marriage–supported by an overwhelming majority of Americans–”to be a ‘reasonable’ one.”
Never in the history of this great nation has a President so openly defied his duty to uphold and defend the law of the United States . Now, this White House is declaring war–not only on marriage–but on Congress, whose authority this President now rejects. If this congressional leadership does not intervene with the force this attack demands, then they will become complicit in behavior that is more befitting of a Middle East regime. To our friends who want nothing more than to leave these issues behind, this is what a social truce would look like. Republicans need to see this challenge for what it is: the White House, throwing down the gauntlet on marriage and declaring them irrelevant. That same piece of yellowed parchment that empowers this President is the one that demands, “He shall take care that the laws be faithfully enforced.” And where he fails, Congress must not.
REP. Jared Polis cheers Justice Department’s decision on DOMA
WASHINGTON, D.C. – In response to the Administration’s conclusion that Section 3 of the Defense of Marriage (Act), a bill that restricts the federal definition of marriage to one man and one woman, is unconstitutional, Congressman Jared Polis released the following statement.
“I applaud the Administration for finally recognizing what my colleagues and I have long criticized—that this is an unconstitutional law.
I am confident that today’s decision will secure a path to equality for every American wishing to participate in the tradition of marriage. To deny people the ability to officially acknowledge their relationship and feel welcomed as partners only for being LGBT is absurd and today’s decision confirms this. It is now an urgent call for us in Congress to address this violation of the constitution and repeal this abhorrent law.”
###
BOXER STATEMENT ON OBAMA ADMINISTRATION’S DECISION ON DEFENSE OF MARRIAGE ACT
Los Angeles, CA – U.S. Senator Barbara Boxer (D-CA) released the following statement today after Attorney General Eric Holder informed Congress that the Obama Administration would no longer defend the constitutionality of provisions within the Defense of Marriage Act, which states that the federal government will only recognize marriage as between a man and a woman:
“The administration’s decision today is a major step forward for fairness and equality for all Americans. This is an unjust and discriminatory law and I have strongly opposed it since it was first enacted.”
Senator Boxer was one of only fourteen senators to vote against the law when it was passed in 1996 and has since been a staunch opponent of the law.
Pelosi Statement on Obama Administration Decision to No Longer Defend DOMA
February 23, 2011
Washington, D.C. – Democratic Leader Nancy Pelosi released the following statement today after President Obama ordered the Department of Justice to stop defending the constitutionality of the Defense of Marriage Act in federal courts:
“The Obama Administration’s decision is a victory for civil rights, fairness, and equality for the LGBT community and all Americans.
“Since its inception, the discriminatory Defense of Marriage Act has long been viewed as a violation of the equal protection clause of the Constitution. Today, the President made clear that he agrees – and I commend him for taking this bold step forward to ensure the federal government is no longer in the business of defending an indefensible statute.
“The fight for marriage equality is far from over, and we will continue to work towards the day when all American families are treated with respect and viewed equally in the eyes of the law.”
Recent Comments