Breaking – Justice Dept. drops defense of DOMA

Timothy Kincaid

February 23rd, 2011

From AP

The Obama administration says it will no longer defend the constitutionality of a federal law that bans recognition of same-sex marriage.

In a statement Wednesday, Attorney General Eric Holder says President Barack Obama has concluded that the administration can no longer defend the federal law that defines marriage as only between a man and a woman.

It’s a bit early, but here is my assessment: [NOTE: this is an early assessment and I’ll likely provide a revised assessment at more information appears.]

In July 2010, Federal Court Judge Tauro found that the Defense of Marriage Act (DOMA) violated the US Constitution in two ways. 1) Congress cannot usurp the rights of states to define marriage for their citizens (the Commonwealth case) and 2) The federal government cannot treat gay married individuals differently from straight married individuals (the Gill case). It appears that the DOJ will now drop its appeal of Tauro’s decision.

This would immediately impact the First Federal Court District (Maine, Massachusetts, Puerto Rico, New Hampshire, Rhode Island) and would mean that same-sex marriages in Massachusetts and New Hampshire would be given full federal recognition. But by accepting the court’s determination that these provisions of DOMA are unconstitutional, the Obama Administration is signaling either that the federal government will immediately recognize all state’s same-sex marriages or that it will not oppose suits that seek such recognition in other court districts (such as the case already progressing in California).

This has an immense effect on those couples. This provides for equal federal taxation, spousal recognition for immigration (congratulations Tim and Junior), social security, and many many other rights and obligations. And perhaps as importantly, it removes the last barrier to “really married” that set same-sex couples apart.

But this also changes the political playing field tremendously.

Supporters of marriage equality have been given a powerful new message. It is now no longer a matter of nomenclature where states grant all the rights of marriage but not the name.

The federal government has no provision by which to recognize civil unions or domestic partnerships. So “protecting marriage” by reserving that title for heterosexuals now means denying gay citizens access to federal rights. This is, almost certainly, to tip the scales on the Perry v. Schwarzenegger case. The Proponents – assuming they are granted standing – are now required to argue that the state has a rational basis for granting all state marriage rights and denying all federal marriage rights that can meet heightened scrutiny. That is unlikely to be an easy task.

Further, this will impact the decisions of politicians who want to straddle the fence and make both sides happy. They can no longer say, “well I support your rights” when they are blocking access to social security or other federal benefits.

And this change puts anti-gay Republicans in a difficult position. The provisions of DOMA that allow Alabama to ignore Iowa’s marriages were not challenged. And they can hardly call for a Constitutional Amendment to disallow the citizens or representatives of a state to determine their own laws and still pretend to believe in local control or federalism. They can rant about Obama “usurping Congress’ role,” but they run the risk of alienating part of their own base if they insist that they should dictate to states what their laws should be.

This is a very significant day.

Rob San Diego

February 23rd, 2011

I just heard Maggie Gallagher speaking to FOX’s Megan Kelly and both are very pissed off that this is going through. Does FOX not have any gay people as reporters or staff, I’d be pissed off if I were working at that place and being put down.


February 23rd, 2011

I read the DOJ’s pres release and letter to Speaker Boehner and it seems unfortunately that while this is good news, it’s not as good as you describe. The decision applies ONLY to the two cases in the second circuit, NOT to the first circuit appeal still pending. Furthermore the letter makes clear that the President and his administration will continue to enforce section 3 of DOMA until it is either repealed or there comes a final determination from the courts that it is unconstitutional.


February 23rd, 2011

As to the administration still enforcing section 3 (ie not recognizing marriages) that much is explicit in Holder’s letter.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As for the situation in other circuits it is less clear. The letter constantly refers to the 2nd circuit and the specific cases there. Furthermore it invites Congress, if it so wishes, to get involved in those cases. That led me to believe the decision doesn’t affect the 1st circuit. There is, however, a paragraph at the end where Holder states,

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.

But it doesn’t state they are dropping their appeal. I take this to mean that in those circuits they will argue that IF rational basis applies, the law should stand, but if not it shouldn’t. Certainly this makes the government’s case substantially weaker in the 1st circuit.

Stefano A

February 23rd, 2011

Indeed, I believe Galois’ assessment of Holder’s letter is spot on.

In essence, what Holder said in his letter to John Boehner was that if the disrict courts determine that the applicable standard to be applied in these cases (those pending in the Southern District of New York and the one filed in the District of Connecticut) is rational basis, rather than heightened scrutiny, then the US Department of Justice will continue to argue for Section 3’s constitutionality under the more permissive standard.

I am, however, unclear as to how this impacts any pending litigation outside of New York or Connecticut.

Holder specifically said in his letter to Boehner that he was only instructing the DOJ’s lawyers to inform the SecondCCircuit of this latest change in position.

Timothy Kincaid

February 23rd, 2011

Galois, etc.

My observations were, as I stated, “a bit early”. I’ll likely provide a revised analysis as more info comes out.


February 23rd, 2011

Given that Gill v. OPM and Mass v. HHS were specifically crafted against DOMA sec. 3, Holder’s later paragraph would indicate that they’d drop their defense in those cases.

However, and contrary to Tim’s assertion above, Tauro’s decision is not binding across the whole of the 1st Circuit, nor even across all of MA – it’s binding only on the litigants in the case, per the rules of the judiciary.

For Tauro’s rulings to have wider affect, they would need to be affirmed by the 1st Circuit Court. As it is, they have precedential value, but do not bind anyone besides the parties to the suit.

Also, via SCOTUSBlog, Olson has already filed a motion to vacate the 9th Circuit’s stay of Perry v. Schwarzenegger, and to permit marriages to begin immediately.

Ben in Oakland

February 23rd, 2011

Being the cynic that i am…

O is taking a principled stand on what they will not appeal. It’s wrong and they know it. but the real reason is that it is oging to send the repblicans into a tizzy, and they probably won’t be able to do anything about it, yet it will distract them from all of the damage they wish to do on all the other fronts.

The other provisions of DOMA are clearly unconstitutional as far as public acts go. O is pretty sure the Supremes will take care of that, and take the heat. An easy out for him, not so easy for the supremes.

Stefano A

February 23rd, 2011


I do find this change of position in one respect, and that is that this is the first time, best I can recall, the US DOJ has taken an official position that official discrimination based on sexual orientation should be evaluated under heightened scrutiny and is generally unconstitutional.

Stefano A

February 23rd, 2011

I do find … significant in one respect … I meant to say.


February 23rd, 2011

Umm, according to Politico, just because Obama’s DOJ has dropped its defense doesn’t mean that members of Congress cannot step in and defend DOMA in court. That’s why Holder served a notice to members of Congress today.


February 23rd, 2011

As president, Obama is sworn to uphold the constitution/laws of this country. His is not to pick and chose. The action by the DOJ today, makes it clear Mr Obama has decided, rather than let the courts rule on the constitutionality of a Federal Law (in this case DOMA), his administration will decide what laws are to be upheld or not. We have no king here, yet Mr Obama is now making it clear he believes himself to be above the law. Whether or not you believe DOMA is constitutional or not, as an American you should feel outraged by the actions of our president today. Who the hell does Mr Obama think he is ???

Chris McCoy

February 23rd, 2011

Spartann wrote:

As president, Obama is sworn to uphold the constitution/laws of this country. His is not to pick and chose.

Please cite the section of the Constitution where it requires the Executive branch to defend every suit brought against the Federal Government.

We have no king here, yet Mr Obama is now making it clear he believes himself to be above the law.

Mr Obama has done exactly the same as every US President in history before him.

You should be thankful that the President has decided not to waste even more tax payer money defending this discriminatory law.


February 23rd, 2011

Thank you Spartann for the GOProud rebuttal, but just like the rest of GOProud you could use a refresher course in elementary school level civics.

You would be hard pressed to find a single administration in the last 100 years who didn’t refuse to defend one or more laws based on personal disagreement with the law or a belief that the law is unconstitutional.

And with every administration the only people to bitch are people in the Party not in the White House at the time.

Get over it.

Ben in Oakland

February 23rd, 2011

Spartann– Obama is required to enforce the law. I know of no law or constitutional provision that requires him to believe it is constitutional just because it exists, or to defend it in court as if it were. Moreover, he has invited congress to step in and defend it if they will. They might do so, but i suspect that they will look even stupider than they do already.

Priya Lynn

February 23rd, 2011

Spartann said “Whether or not you believe DOMA is constitutional or not, as an American you should feel outraged by the actions of our president today. Who the hell does Mr Obama think he is ???”.

LOL, yes, I’m so outraged.

Good on you Spartann.

Timothy Kincaid

February 23rd, 2011

Whether or not you believe DOMA is constitutional or not, as an American you should feel outraged by the actions of our president today.

And what are those actions?

An announcement that in the court districts in which there is no precedent for assuming rational basis, the DOJ will not argue for a rational basis standard.

Outraged… no, that’s not the feeling I feel.


February 23rd, 2011

Since some of you may not be familiar with the 1st line of the presidential oath — the same oath I might add, was administered to Mr Obama on November 20, 2009 — please focus your attention below:

“I DO SOLEMNLY SWEAR, that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Having said that, I would like to offer this provocative question:

Should a President who both knowingly signs a law that is unconstitutional (Obamacare), AND who refuses to defend a law (DOMA) passed by Congress and signed by a former president, (though he deems it to be unconstitutional) be charged and impeachment?

And they told me, if I voted for McCain, there would be an Imperial Presidency.  Seems they were right!

Timothy Kincaid

February 23rd, 2011

Spartann has ceased attempting to debate the merits of the President’s decision and is now engaged in baiting you.

This is trollish behavior and I advise our readers not to encourage it. Please do not respond to Spartann’s obvious attempt to provoke.


February 23rd, 2011

to Timothy Kincaid…

Ya know, I didn’t say yea or nay above,,, but what I did post absolutely stays within the parameters of what’s being offered by others. But what the heck, right? Because rather than see anyone argue a different point, you go and issue the same ham handed edict you’ve become famous for when someone posts a rebuttal that doesn’t mollycoddle your position. Not for nothing, but don’t you think it’s time to break from habit and and expand your horizon???

Now to add to what I’ve been saying: According to the Constitution, lawmakers craft our laws, the courts are tasked with deciding what is law, and the Executive is charged with defending and enforcing the law…. Like I said earlier, we have NO king here.


February 23rd, 2011

As hard as it may be Timothy, I’ll honor your reasonable request and not feed the trolls.


February 23rd, 2011

Here is GLAD’s response to the DOJ announcement. Even they are uncertain what this means in terms of the appeal before the First Circuit.


February 24th, 2011


You quoted the presidential oath, which I note includes a commitment to “protect and defend the Constition of the United States” (I note there is no commitment here to defend laws other than the Constitution). You claim that the President is obliged to defend laws passed by Congress and signed by the President.

What happens, then, when a law passed by Congress and signed by the President is unconstitutional? Does a subsequent President, believing that law to be unconstitutional, have a duty either to a) defend the law passed by Congress, or b) defend the integrity of the Constitution? It seems to me that he cannot do both.


February 24th, 2011

It’s amazing how wrong people like Spartann can get something when they want to score partisan points. The President and the DOJ *did* defend the law. There was a trial and they lost. Oh but wait, since he (the President) chooses not to fight on appeal, he’s breaking his presidential oath? Nice try but not quite. Defending the law does not mean “do everything you possibly can no matter what to keep said law on the books” Obama and Co did thier jobs. They defended the law in court and lost. Now they are walking away rather than waste more time and money on a losing case.

Not appealing is not the same as not defending. Too bad the anti-equality side doesn’t get that.

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