Obama Administration Will Not Defend DOMA

by Kilian Melloy

EDGE Staff Reporter

Wednesday February 23, 2011

The Obama Administration will not defend the anti-gay 1996 law known as the "Defense of Marriage" Act, or DOMA, in two current lawsuits. President Obama believes that DOMA violates the Fifth Amendment's equal protection clause.

Under the provisions of the act, signed into law by then-president Bill Clinton, gay and lesbian families may not be recognized legally by the federal government. That means that even those same-sex couples that are married in the five states where family parity is legal can only access state-level benefits and protections related to matrimony. The law also allows states to ignore marriages granted in other jurisdictions. Section 3 of the law defines marriage as a legal union of one man and one woman.

Attorney General Eric H. Holder. Jr., made a statement on Feb. 23 on the decision not to defend the law.

"In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court," Holder noted. "Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

"Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated," Holder's statement continued. "In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply."

A New York Times article last month took note of exactly this dilemma, predicting that the Obama administration would be required to abandon its carefully cultivated middle of the road approach to GLBT rights in the case of the court challenges to DOMA. The administration was forced to choose which route to take given a deadline for its response in two federal lawsuits.

The cases are legally complex, the New York Times article noted. In July, 2010, a federal judge in Boston ruled that DOMA interferes with Massachusetts' ability to determine who can get married, infringing upon the state's rights. That suit was filed by Gay & Lesbian Advocates & Defenders (GLAD), which argued that DOMA violates "the U.S. Constitution's guarantee of equal protection of the laws," as a summary of the suit prepared by the HRC puts it. Last November, the ACLU also brought suit in New York. The Obama Administration had until March 11 to decide whether or not to defend DOMA in court in those cases.

Because of where they were filed, the appeals court handling the suits has no precedent to rely on in formulating a judgment. That has the potential to place Obama in a politically sticky spot: strongly indicating a definite stance about how to handle the needs of the GLBT community--and even, in effect, making a statement about who and what gays are--will almost certainly provoke a firestorm of controversy. In the resulting political climate it could be impossible for the president to strike the measured political tone for which he is noted. Taking definite action seen as embracing gay marriage will most likely alienate those who are skeptical about recognition for same-sex families.

As a candidate, Obama said both that he wants to see DOMA abolished, and that he believes marriage should be a special right reserved exclusively for heterosexual couples. More recently, the president told the press that his attitude toward marriage equality has been "evolving," prompting speculation that Obama may be preparing the ground for a major push for gay and lesbian family equality in time for the 2012 elections.

But the administration's being prematurely forced into direct action on DOMA either way could affect any delicate political calculus that might be in play.

"Now they are being asked what they think the law should be, and not merely how to apply the law as it exists," Cornell University's Michael Dorf, a professor of law, told the New York Times. "There is much less room to hide for that decision."

Obama's justice department has followed the tradition of upholding existing law, to the displeasure of some in the GLBT community. But in at least one instance, the president's careful middle-of-the-road course seems to have reached the mark: much as he has spoken in favor of recognizing same-sex couples in some capacity, Obama also had championed the cause of GLBT patriots and called for the end of "Don't Ask, Don't Tell"--though taking little in the way of direct action to end it, saying that he would rather Congress abolish the anti-gay law. Late last year, that's what happened.

Given the March 11 deadline, the Obama administration did not have limitless time to work out its ideal solution. As with DADT, Obama has said that he would rather see Congress--rather than the courts--rid the law books of the 1996 measure, which targets same-sex families for specific exclusion from any form of federal recognition. A potentially less desirable outcome is to allow the courts to decide the issue.

"I have a whole bunch of really smart lawyers who are looking at a whole range of options," Obama told the media. "I'm always looking for a way to get it done, if possible, through our elected representatives. That may not be possible."

It also may not be possible to forestall a firestorm from the anti-gay side of the debate. Though public opinion increasingly favors granting gay and lesbian couples full legal recognition and equality, religious conservatives, many in the mainstream, and even some GLBTs, are opposed to the idea. Marriage equality opponents are likely to use the administration's decision not to defend DOMA to ignite a firestorm to play up the issue, raise funds, and field political candidates. The support of the GLBT community may not be a foregone conclusion: Gays may refuse to support Democrats, who already took a beating in last year's midterm elections.

Even more nuanced factors are at work in the situation. Explained The New York Times, "Courts give a class [a certain level of protection] if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it." That was the "standard of review" to which Holder referred in his statement.

Standard of Review: Gays Historically Subjected to Discrimination

"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," Holder went on to announce. "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."

Holder added that the Justice Department would not defend DOMA in the two federal lawsuits that have been filed against the 1996 law in the Second Circuit, although the administration would "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," Holder added. "The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation."

Holder noted that it is traditional for the government to defend existing law from challenges even if the sitting administration is philosophically opposed to the law it is defending. But the Justice Department has broken from that tradition in cases where "reasonable" arguments were not available, or where the president believed that the existing law violated constitutional guarantees.

Holder went on to observe that prevailing attitudes have shifted since 1996. "Much of the legal landscape has changed in the 15 years since Congress passed DOMA," the attorney general stated. "The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military's Don't Ask, Don't Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.

"Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law," Holder added. "But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court."

Evan Wolfson, president and founder of Freedom to Marry, welcomed the announcement. "The Administration today acknowledges that there is no legitimate reason for this discrimination and therefore it cannot be defended under the Constitution," Woldosn stated. "This a momentous step forward toward Freedom to Marry's goal of ending federal marriage discrimination and fully protecting all loving and committed couples."

The Human Rights Campaign was also quick to laud the Obama Administration for its decision not to defend the longstanding anti-gay law. "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," Joe Solmonese, head of the HRC, stated in a Feb. 23 release. "As the President has stated previously, DOMA unfairly discriminates against Americans and we applaud him for fulfilling his oath to defend critical constitutional principles."

Solmonese predicted that anti-gay members of Congress would seek to defend DOMA themselves. However, said Solmonese, "Congressional leaders must not waste another taxpayer dollar defending this patently unconstitutional law.

"The federal government has no business picking and choosing which legal marriages they want to recognize," the HRC's leader added. "Instead Congress should take this opportunity to wipe the stain of marriage discrimination from our laws." The HRC release noted that gay and lesbian families are denied "over 1,000 rights, benefits and responsibilities tied to marriage" under the provisions of DOMA. "These include Social Security survivors' benefits, family and medical leave, equal compensation as federal employees, and immigration rights, among many others."

One member of Congress was prompt with his support for the Obama administration's decision. Democratic Congressman Jerrold Nadler of New York, who is the Ranking Democrat on the House Constitution Subcommittee, issued his own statement shortly after Holder's was made available.

"I commend Attorney General Holder and President Obama for their leadership, integrity, and courage," Nadler said. " After careful consideration, and weighing heavily their duty to defend laws passed by Congress, the Attorney General and President concluded that Section 3 of DOMA is unconstitutional and cannot be defended by the Department of Justice.

"This marks the first time that the federal government has recognized that a law designed to harm LGBT Americans and their families cannot be justified," noted Nadler. "The President has long called upon Congress to repeal this unconstitutional law and I will be reintroducing my legislation, the 'Respect for Marriage Act,' to repeal DOMA and ensure that committed, loving couples can rely upon the legal responsibilities and security that come with the time-honored tradition of marriage. I urge all of my colleagues to join me in this effort."

Nadler's Respect for Marriage Act, if passed into law, would protect all marriages by automatically granting federal-level recognition to families, gay or straight, who had been married in any jurisdiction.

Some family equality advocates do not support the bill because it applies only to married couples, and only five states currently allow for marriage equality. The proposed law would do nothing for families who are only recognized as domestic partners or as having a civil union, or--as is the case in the most anti-gay states--whose relationship is denied any legal recognition at all. It would, however, make the federal rights and protections of married couples portable, allowing them to retain federal recognition of their civil marriage even if they relocate to a state that forbids marriage equality.

EDGE National News Editor Michael K. Lavers contributed to this report.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.