Feb 23, 2011

Obama Says DOMA Unconstitutional

On orders from President Obama, the Justice Department will stop defending the federal Defense of Marriage Act (DOMA) in cases now pending in the federal courts, based on the President's conclusion that the law is unconstitutional.

Attorney General Eric Holder today sent a letter to Speaker of the House Boehner explaining that the President and the Department of Justice have re-examined the law in light of two new cases and determined that Section 3 of DOMA is unconstitutional "as applied to same-sex couples legally married under state law." Section 3 states that the federal government recognizes only marriages between a man and woman. 

The most significant conclusion set forth in Holder's letter is this one: "[T]he 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." This means that any law that treats people differently based on their sexual orientation must meet the highest legal standards--it's not enough that the law simply have a rational basis. Instead it must meet much more rigorous Constitutional tests. 

Other courts have applied strict scrutiny in marriage equality cases, but having the support of the President and the DOJ for this level of scrutiny is an enormous step forward. It also provides the basis for the President's turnaround--in the past, Holder said, the DOJ has defended DOMA cases because the level of scrutiny was lower. Having determined that heightened scrutiny applies, the administration is no longer able to defend the law. 

This means that two cases now proceeding through the federal courts will do so without opposition from the federal government. The Huffington Post reports that the DOJ will advise the courts in these two cases of the government's policy change. Here's a link to a Washington Post opinion piece about those cases.