Marc Ambinder at the National Journal is reporting:
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 administration will formally notify Congress later today. The act sought to restrict single-sex unions.
This is an astonishing reversal of the often-cited claim that the Administration and DOJ are compelled to defend the law. I commend the administration on this move, it isn't easy to reverse course in politics, particularly when you're under the microscope as the administration is.
This is huge, and an excellent decision by the administration and a significant move toward Obama getting on the right side of this issue.
Congratulations, President Obama and Attorney General Eric Holder! The LGBT community of America owes you a great debt of thanks.
How this will impact the half dozen pending cases. I'm sure there will be many updates.Updated by Clarknt67 at Wed Feb 23, 2011, 12:39:20 PM
Oops, already on Rec List. Delete or not?
Resident legal eagle Adam B has front paged this story. It seems unclear to me that this may be only Section 3 of DOMA that they are declining to defend, which will affect GLAD's Pedersen v. O.P.M. challenge, and others. But not necessarily all cases.
Topic on the table for legal minds: ACLU's Windsor v. US is a facial challenge to the entire law, not just Section 3. What will the implications for this and other similar cases be?
Adam B addresses this, this is about Windsor:
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.
I'm thinking this can't be this easy. If Congress has the option to defend DOMA, it certainly seems Speaker Boehner will step up to the plate, and the cases will go forward. Which means, the fight is not so much over, as responsibility flips from the Admin to the GOP, which is smart politics for Obama.
But also good for the LGBT community to have the President's credibility behind out position.
A PDF of AG Holder's letter to Speaker Boehner is here.
I can't imagine that Speaker Boehner and the GOP won't rise to the challenge of continuing the defense of the undefensible. As Adam says on the Front Page:
Congress or some other parties will step in and defend DOMA, and some courts could agree with their arguments. And the Administration will still enforce the law until it's repealed.
"Could" seems optimistic. Since Boehner has the power, I can't imagine he won't exercise it. Will he risk the fury of the far right by not doing all he can to fight
those dirty homos to preserve marriage?
I suspect these cases will continue as will DOMA. Which is the cloud to this silver lining. But it's a very shiny silver lining.
Update: My favorite Senator weighs in, moving the conversation forward. As always:
GILLIBRAND PRAISES OBAMA ADMINISTRATION’S DECISION TO NO LONGER DEFEND DOMA IN COURT
“The Time for Congress to Repeal DOMA is Now”
Washington D.C. – After U.S. Attorney General Holder’s announcement today that the Department of Justice, at the instruction of President Obama, will no longer defend Section 3 of Defense of Marriage Act lawsuits in court, U.S. Senator Kirsten Gillibrand, a leading voice in the Senate to repeal DOMA, released the following statement:
“Sexual orientation discrimination has no place in American law. I commend the Obama administration for upholding this American value today by concluding this statute is unconstitutional.
“The fact is that history is moving in a direction that ensures gay and lesbian couples are offered the same basic rights as everyone else – the right to get married, start a family and receive the full benefits that come with it, and be counted the same as everyone else. I look forward to the day when New York and all states accept this basic principle of fairness.
“The time for Congress to repeal DOMA is now, and I will work hard to make sure marriage equality becomes a reality for all.”
Repealing the Defense of Marriage Act would extend over 1,000 federal rights and hundreds of additional state rights to lesbian and gay couples who are married in states that allow gay marriage – rights including medical treatment and hospital visitation; medical proxy; inheritance; tax benefits; employee benefits for families, including health and life insurance, bereavement, sick leave, child rights and custodial protection, among many others. These rights would also have the potential to be provided to married gay and lesbian couples living in New York, which recognizes out-of-state marriages.
Senator Gillibrand believes lesbian and gay couples deserve the same rights, responsibilities, benefits and obligation that opposite sex married couples have – and that come only through marriage equality. Senator Gillibrand is committed to ensuring the same basic rights for everyone, and that’s why she’s working to repeal the Defense of Marriage Act.
From The ACLU:
President Obama Says Discriminatory “Defense Of Marriage Act” Is Unconstitutional
Justice Department Won’t Defend ACLU Lawsuit On Behalf Of Surviving Spouse Challenging Government's Failure To Recognize Her Marriage
NEW YORK – In an historic show of support for equal treatment under the law, the Obama administration announced today that it will no longer defend the discriminatory “Defense of Marriage Act” (DOMA) in court. In a statement, Attorney General Eric Holder said that President Obama has concluded that Section 3 of DOMA is unconstitutional because it fails to meet the legal standard – “heightened scrutiny” – that applies when the government treats gay people and straight people differently.
One of the cases challenging DOMA was brought by Edith "Edie" Windsor, who shared her life with her late spouse, Thea Spyer, for 44 years. Windsor filed a lawsuit against the federal government for refusing to recognize their marriage and imposing a $350,000 tax on Spyer’s estate when she died that Windsor would not have had to pay if she were married to a man. Windsor brought the lawsuit with the assistance of the American Civil Liberties Union, the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP and the New York Civil Liberties Union.
The following can be attributed to Anthony D. Romero, Executive Director of the ACLU:
“The president did the right thing and just propelled gay rights into the 21st century, where it belongs. Our government finally recognizes what we knew 14 years ago – that the so-called ‘Defense of Marriage Act’ is a gross violation of the Constitution’s guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America. Our Constitution promises that the government will treat everyone equally. Today’s announcement is a recognition that gay people, too, are promised equal treatment under the law. Now it is only a matter of time before LGBT people in the United States will finally have full equality in our society.”
The following can be attributed to James Esseks, Director of the ACLU Lesbian, Gay, Bisexual and Transgender Project:
“Edie Windsor loved and cared for her spouse Thea Spyer for years, only to be treated like a total stranger after Thea’s death. We are delighted that the government acknowledges that it is completely unfair to pretend that Edie and Thea were not married and treat their marriage differently from married straight couples.”
The following can be attributed to Edith Windsor, lead plaintiff in the case Windsor v. United States:
“When I brought this case, I knew that the government would never be able to justify that I had to pay a $350,000 estate tax simply because I was married to a woman, rather than a man. There are not words to express my feelings today that President Obama and the Department of Justice have done the right thing by recognizing this fundamental principle that all people and all marriages are entitled to be treated equally under the United States Constitution. My only regret is that my beloved late spouse, Thea Spyer, isn't here today to share in this historic moment. But in my heart, I feel that she knows.”
More information on the lawsuit can be found here: www.aclu.org/edie
Edie Windsor & Thea Spyer:
Richard Socarides, of Equality Matters:
“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 millions of 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.”
These from Columbia Law School:
Katherine Franke, Professor of Law; Director, Center for Gender and Sexuality Law:
The Obama administration is to be applauded for recognizing the injustice and discrimination that were solidified into law with the enactment of the Defense of Marriage Act (DOMA). His decision, along with his Attorney General, to abandon defense of lawsuits challenging DOMA signals a true shift in the recognition of the fundamental rights of lesbians and gay men to organize their lives in ways equal to those of heterosexuals. I also applaud the President and Attorney General's statement that sexual orientation should be treated as a suspect class under equal protection analysis, thus requiring any state that seeks to discriminate on the basis of sexual orientation to provide not just a plausible, but a compelling reason for doing so. This represents a sea change in the recognition of lesbian and gay rights in the U.S.
The President and Justice Department could, however, take one further step, and refuse to defend the lawsuits challenging Don't Ask, Don't Tell. At the same time that the Administration has changed policy on the marriage rights of same-sex couples, it continues to defend the blatantly discriminatory policy of the U.S. military. This is particularly surprising given that Congress has authorized the repeal of DADT and the President has recognized that maintenance of the policy undermines unit readiness and national security. I urge him to reverse course in the DADT litigation just as he has in the DOMA cases.
Suzanne Goldberg, Clinical Professor of Law; Director, Center for Gender and Sexuality Law:
This major turn should be a final nail in the coffin for the different treatment of gay and nongay people by the federal government in marriage and the military. It is a long time coming and is wonderful news for the entire nation as we move a giant step closer to equality for all.
Interesting nugget from Ambinder's piece JPMassar drew my attention to:
Privately, the administration believes that five justices of the Court, including Anthony Kennedy, the swing vote, would find parts or most of DOMA invalid if the federal government withdrew its arguments in defense of it.
Certainly, the opinion of the Admin can hold weight in the eventual SCOTUS challenge, it's a reasonable inference. I'd be careful about concluding this is a driving force behind the decision.