Breaking: Obama DOJ Declares DOMA Unconstitutional, Won't Defend it in Court

This just in from U.S. Attorney General Eric holder informed congress in a letter this afternoon that the US government will not defend DOMA in two pending lawsuits (Pedersen v. OPM and Windsor v. United States) because the Department of Justice and the president believe that section 3 of the law is unconstitutional.

This is major!


AG Holder acknowledges that based of prior lower rulings in several other cases, it is the administration's belief that section 3 of the Defense of Marriage Act, which defines marriage as between one man and one woman for federal purposes, violates the 5th amendment of the US Constitution. Holder explains:

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision.   In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.   As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

In other words, just as in the Prop 8 case last year, laws that discriminate against gays and lesbians must meet a higher level of scrutiny. It comes down to recognizing us as a suspect class that has been singled out for discrimination without any rational basis. Holder elaborates on this point:

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 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 Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut.   I concur in this determination.

Holder says that although the government will not appeal these two cases, the executive branch will continue to abide by section 3 until DOMA is overturned legislatively:

 ...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. 

So this is another of Obama's classic moves. He once again agrees that DOMA is wrong, he takes it a step further, saying he believes the law violates the constitution,but exempts the executive branch from having to comply with his own findings until/unless the Republican congress votes to overturn it. 


How this all will play out remains to be seen. My head is still spinning from this.