Until now, the Department of Justice has defended Section 3 of DOMA in court challenges. This section states that "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 wife."
Two DOMA challenges are currently pending in the 2nd U.S. Circuit Court of Appeals.
In a letter to Congress released today, Attorney General Holder said in part:
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.In a statement, LGBT advocacy group Human Rights Campaign hailed the decision, calling it a "rare and extraordinary step":
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.
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."Conservative blogger Ed Morrissey, writing at Hot Air, is less impressed:
Sooooooo ... when did the Constitutional Scholar in Chief come to this conclusion? Barack Obama has been in office for two years (having run on the promise to repeal DOMA), and during his entire term, the DoJ defended DOMA's constitutionality. Now Obama is apparently saying he was wrong all along.Queerty, an online gay news magazine, believes there's reason to celebrate:
Maybe he should consider changing his mind on ObamaCare, too. At least in the case of the PPACA [Patient Protection and Affordable Care Act], a couple of federal judges have already reached that conclusion.
The significance of this development cannot be overstated. No longer will the federal government truly stand in the way of lawsuits challenging the constitutionality of DOMA's Section 3. Which means if Congress does not repeal the law, the courts will, and the Obama administration won't get in their way. Further, we have Obama (through Holder) saying he believes the law "violates" the Constitution. We have been struggling to get him to say exactly that, and argued that until he uttered the words, we should believe his stance to be he's fine with DOMA.
This is a great day.
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