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February 23, 2011

OBAMA ADMINISTRATION DROPS DOMA SUPPORT.... President Obama has long said he opposes the Defense of Marriage Act (DOMA), but his administration has nevertheless felt compelled to defend the law in court. It's been the subject of considerable debate.

As of this afternoon, however, the debate changed considerably, with the the president showing some welcome and much-needed leadership.

President Obama has decided that the Defense of Marriage Act is unconstitutional and has asked his Justice Department to stop defending it in court, the administration announced today.

"The President believes that DOMA is unconstitutional. They are no longer going to be defending the cases in the 1st and 2nd circuits," a person briefed on the decision said.

The full statement from the Justice Department is online here. It includes this sentiment from Attorney General Eric Holder:

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."

For those on the anti-gay right who've tried to label Obama "our first gay president," today's move probably won't help matters.

But for millions of Americans seeking justice, the administration's reversal may prove to be very helpful, indeed.

To clarify, today's news does not mean DOMA is dead, at least not yet. It's still federal law, and will remain on the books until Congress repeals it or the courts strike it down. But effective immediately, Obama's Justice Department believes DOMA is unconstitutional and will no longer defend it against two ongoing legal challenges.

It's another civil-rights breakthrough for the Obama administration.

Steve Benen 1:15 PM Permalink | Trackbacks | Comments (22)

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Comments

This puts a very big smile on my face.

And knowing how many heads will be exploding on the religious right doubles that smile!

Posted by: K in VA on February 23, 2011 at 1:23 PM | PERMALINK

Good. About time.

Posted by: Tigershark on February 23, 2011 at 1:25 PM | PERMALINK
For those on the anti-gay right who've tried to label Obama "our first gay president," today's move probably won't help matters.

He'll get no credit for it from the left, either

Go see Americablog, or Democratic Underground.

Posted by: Davis X. Machina on February 23, 2011 at 1:35 PM | PERMALINK

Now that BHO has fully embraced the gay agenda, can Sharia law be far behind?

Posted by: Al on February 23, 2011 at 1:40 PM | PERMALINK

There's no way this was released now without it intended being a distraction from something else. Don't know what it's diverting our attention from, but we need more like it.

Posted by: martin on February 23, 2011 at 1:44 PM | PERMALINK

I am pleased by the Administration's reversal on this matter. However, as I read the DOJ statement, "as applied to legally married same-sex couples" is a narrow determination. It is an acknowledgement that the definition of marriage is a state question, not a federal one. If a state determines that same sex couples can marry, the federal executive must step back. I think that's the correct constitutional conclusion. It does not mean DOJ will side with same-sex couples in states where same-sex marriage is not legal.

Posted by: jpeckjr on February 23, 2011 at 1:52 PM | PERMALINK

"the president showing some welcome and much-needed leadership." REALLY Steve? REALLY? It seems that 'No drama, Obama' gets MANY things thru but only 'shows leadership' when you agree with it. Maybe LEADERSHIP is keeping your eye on the ball and not going for every short term 'bump' or microphone. Hmmmmmmmmmmmmmm.

Posted by: SYSPROG on February 23, 2011 at 2:02 PM | PERMALINK

More social engineering from the left. None of my three ex-wives or I would allow a homosexual in the house. We were concerned about possible recruitment of our vulnerable children.

Now we have a gay lover in the White House. That's FAAAAABULOUS change you can believe in, huh?

Posted by: Mlke K on February 23, 2011 at 2:39 PM | PERMALINK

The president has decided that it's unconstitutional, has he? I thought that was the job of the courts. I hated it when Dubya played this game with laws he didn't like, and I'm not any happier about it now. The fact that it's being done by a president I support for a cause that means so much to me just makes me even more nervous. What's to stop a future president who happens to be a right-wing clown from just rolling this back?

The rule of law shouldn't be compromised just because it helps our political or social goals.

Posted by: Shade Tail on February 23, 2011 at 3:32 PM | PERMALINK

I'm confused...I thought Mike K was a real troll (as opposed to Myke K); but... 3 ex-wives? For DOMA? That's GOT to be parody!

Posted by: Jim H on February 23, 2011 at 3:34 PM | PERMALINK

Jim H: Notice that the poster in question isn't Mike K, but, rather, MIke K. The second letter is an upper-case i (or a lower-case L; I can't tell).

Posted by: Shade Tail on February 23, 2011 at 3:46 PM | PERMALINK

This has the potential to be wide-reaching, beyond the issue of same-sex couples in the few states and DC who can currently marry.

As I understand it, the current thinking is that DOMA prevents the Federal Government from granting employment benefits (medical insurance, pensions to survivors of deceased workers, etc.) to same-sex partners of Federal employees. If DOMA is struck down in its entirety, that could mean the Feds could grant such benefits to same-sex partners, whether legally married or in "domestic partnerships" or "civil unions." Similarly, it could open the door to same-sex couples filing joint tax returns.

Similarly, a case could be made that if DOMA is struck down these couples could also file joint income tax returns and see significant tax cuts. (of course, that would

Posted by: Eeyore on February 23, 2011 at 3:50 PM | PERMALINK

"The president has decided that it's unconstitutional, has he? I thought that was the job of the courts. I hated it when Dubya played this game with laws he didn't like, and I'm not any happier about it now."

Obama's are not similar to George W. Bush's. Obama is still enforcing DOMA. However, in a court proceeding taking place in a jurisdiction with no controlling precedent, he is arguing that the law needs to withstand "strict scrutiny" in order to be upheld, meaning that the discrimination against legally married couples just because they're same-sex needs to have a strong justification. It's not the same as failing to enforce a law, or reinterpreting a law through signing statements.

Posted by: sapient on February 23, 2011 at 4:00 PM | PERMALINK

sapient: I hope you're right about that, I really do. I admit I'm no lawyer. But this still feels like the executive branch backing down from its Constitutionally mandated duties for political reasons. The memo says that the law needs to withstand "a more heightened standard of scrutiny", but how is that a good reason to stop defending it? Since when is it the job of the executive to scrutinize a law and decide that it is unconstitutional?

Posted by: Shade Tail on February 23, 2011 at 4:17 PM | PERMALINK

While it is the President's job, through the Department of Justice to defend laws against court challenges, it is also his duty to uphold the constitution and to not present arguments in bad faith. So if he and the Attorney General agree that DOMA is unconstitutional, rather then disengenuosly arguing that it IS constitutional, he is announcing his finding and providing the law's supporters in Congress the opportunity to arrange for it to be defended.

Posted by: tanstaafl on February 23, 2011 at 5:15 PM | PERMALINK
But this still feels like the executive branch backing down from its Constitutionally mandated duties for political reasons.

Not defending unconstitutional laws is a Constitutional duty of the executive branch (and, for that matter, every public officer who takes an oath to protect the Constitution.)

There can be no Constitutional duty to defend unconstitutional government actions. The idea is ridiculous on its face.

Posted by: cmdicely on February 23, 2011 at 6:47 PM | PERMALINK

"...asked his Justice Department..."

"HIS"?? justice department. WTF?

"...Obama's Justice Department believes DOMA is unconstitutional..."

The Department of Justice belongs to the people. Justice is non-partisan. It should be stated that Obama asked "THE" Justice Department...or that "THE" Justice Department believes DOMA is unconstitutional.

The Justice department does not 'belong' to presidents. Presidents only nominate who should head it.

Bush and Rove had to constantly be reminded of this fact and maybe Obama needs to be reminded also.

Posted by: bjobotts on February 23, 2011 at 7:11 PM | PERMALINK
The Department of Justice belongs to the people. Justice is non-partisan.

All of the U.S. government, including the Executive Office of the President, belongs, in a general sense, to the people, but all of the Executive Branch works for the President, in whom the Constitution vests executive power. This certainly includes the Justice Department, which is no more "non-partisan" than the White House itself, or any other cabinet-level agency.

Posted by: cmdicely on February 23, 2011 at 7:21 PM | PERMALINK

I predict the 1st and 2nd circuit will demand briefs from the administration regardless of what Mr. Obama or Mr. Holder think.

Posted by: Neo on February 23, 2011 at 8:35 PM | PERMALINK

cmdicely: ["Not defending unconstitutional laws is a Constitutional duty of the executive branch (and, for that matter, every public officer who takes an oath to protect the Constitution.)"]

["There can be no Constitutional duty to defend unconstitutional government actions. The idea is ridiculous on its face."]

And on what basis, precisely, do you (or President Obama) declare that this law is unconstitutional? Do you have the court decision which says so? Please link to it.

Judicial review is the job of the judicial branch, not the executive branch. So, once again, I ask: since when is it the job of the executive to scrutinize a law and decide that it is unconstitutional? And how is this a good basis to just unilaterally decide not to defend a law in court?

This issue is deeply personal to me, so dammit, I want it handled legally and properly. That will make it much harder for a right-wing crank lucky enough to be elected President to roll it back.

Posted by: Shade Tail on February 23, 2011 at 9:04 PM | PERMALINK
And on what basis, precisely, do you (or President Obama) declare that this law is unconstitutional? o you have the court decision which says so?

The Executive isn't subordinate to the judiciary; it has an independent obligation to understand and apply the Constitution in the absence of action by the courts; particularly, it must do so in order to decide how to respond to challenges to government actions in the courts.

Judicial review is the job of the judicial branch, not the executive branch

Judicial review obviously is the responsibility of the judicial branch. But while resolution of court controversies over Constitutionality is one—and the final, where it is invoked—way that issues of Constitutional interpretation are addressed, they are addressed in many ways, in every branch of government, and this is essential to the proper functioning of the government.

So, once again, I ask: since when is it the job of the executive to scrutinize a law and decide that it is unconstitutional?

Since the executive was required to take an oath to uphold the Constitution, and since the executive was charged with executing the laws, since an act of Congress is a law if and only if that act is within the Constitutional powers of the Congress.

This is not a new principle, either in theory or in application: its been widely accepted for pretty much the entire history of the Republic, and exercised in just this way many times in the past.

Posted by: cmdicely on February 24, 2011 at 3:05 AM | PERMALINK

Steve,

FWIW, Dahlia Lithwick, as always, provides light where the headlines, including yours, provide heat.

http://www.slate.com/id/2286200/

To be accurate, the admin has not dropped DOMA support because it's decided the law is unconstitutional. They continue to enforce and defend laws that they believe are unconstituional. Complaints from the right and celebrations on the left that Obama has "declared" the unconstitutionality of DOMA are unwarranted.

Shorter Lithwick: if a defense of DOMA involves only gay-bashing and junk science, DOJ will sit out.

Posted by: RusL on February 24, 2011 at 10:38 AM | PERMALINK




 

 

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