Thursday, February 24, 2011

Obama Administration Will No Longer Defend DOMA

The Boston Globe reported this morning that President Obama announced that his administration would no longer defend the Defense of Marriage Act (DOMA) against suits challenging its constitutionality. The administration will continue to enforce the law, but Attorney General Eric Holder, Jr. has informed Congress of his opinion that DOMA is unconstitutional, and that he will exert his discretion to no longer defend the law. If the Justice Department does not challenge such decisions as Pedersen et al. v. Office of Personnel Management et al. (Dist. of Conn.)which addresses the rights of federal employees in Connecticut, Vermont, and New Hampshire, and follows on the heels of the Massachusetts Federal District Court ruling last summer in Gill v. O.P.M. finding DOMA Section 3 unconstitutional, it is not clear what the effect will be on such cases. (see here for a complete list of the legal documents in Gill and Pederson at GLAD's website.) Here is the GLAD statement on the likely effect of this decision:

The Department of Justice announced today that it will not defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) in two challenges pending in the District Courts within the jurisdiction of the Second Circuit Court of Appeals, including GLAD’s case Pedersen v. O.P.M. in District Court in Connecticut.

It is extraordinarily significant that the Dept. of Justice recognizes what we have been saying for years in our litigation. Laws that distinguish between people based on sexual orientation are more likely to reflect prejudice against gay people than good public policy. Discrimination based on sexual orientation needs to be justified by the government with exceptionally good reasons rather than being assumed to be permissible. The Attorney General concedes that DOMA fails this test.

This is a welcome acknowledgment but is not the end of GLAD’s DOMA litigation. Ultimately, the courts will decide the standard of review. Moreover, the Attorney General notified Congress that it will not defend the Second Circuit cases and either chamber may step in and appoint counsel to defend DOMA. We are prepared to address head on whatever arguments Congress may make, and bring to an end the harms DOMA imposes on our plaintiff couples and surviving spouses in the litigation and others like them. More information on the litigation and plaintiffs is available at

At this time, it is unclear what effect these developments will have in the government’s pending appeal in the First Circuit in Boston of rulings striking down DOMA in cases brought by GLAD and the Massachusetts Attorney General.

The administration will continue to enforce DOMA, and it will remain in effect until the law is either repealed by Congress or finally declared unconstitutional in court.

Read the Attorney General’s letter to Congress

Read the Attorney General’s Statement
Whatever else you may feel about the timing and the morality of the decision, the politics is entertaining. President Obama has dumped a very hot potato into the Republican Congress' lap right as they have their hands full with job creation and whaling on the Democrats about budget cutting. This set of quotes and bit of analysis from the end of the Globe article finish things up very nicely:
Boehner’s office yesterday did not say if Republicans plan to defend the law. But his spokesman, Michael Steel, accused Obama of poor timing.

“While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,’’ Steel said.

But the nature of Obama’s move places the burden on opponents of same-sex marriage in Congress to take action if they want to keep fighting in courts. And that could be a risky distraction for the GOP which has pledged deficit-fighting and budget issues as its top priorities.

“For the Republican leadership, that is the last thing they want to deal with right now,’’ said Julian Zelizer, a professor of history and public affairs at Princeton University. “I think a lot of Republicans feel that President Obama is quite vulnerable, and they see a real opportunity to do well in 2012, so the last thing you want is to inject an issue that creates dissention and creates divisions. They want to be focused on the deficit, a lot of Republicans — not on this.’’

For Obama, political analysts said, the nod to his liberal base is important, because he has been moving toward the political center following the Republicans’ winning control of the House last November.

“It’s almost, he takes a step to the center,’’ said Jennifer Duffy, senior analyst at the nonpartisan Cook Political Report, “then he yells over his shoulder, ‘I’m still here; we’re going to move when we have to move but on issues you care about I’ll make a difference when I can.’ ’’

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