Breaking: Obama pronounces DOMA unconstitutional, asks DOJ to cease defending the law

Some great news, for a change:

Moments ago, in a sharp reversal of policy, the Obama administration announced that it believes that Section 3 of the 1996 Defense of Marriage Act (DOMA) — which prohibits the federal government from recognizing same-sex marriages — is unconstitutional and will ask the Justice Department to stop defending the law. In a press release announcing the change, U.S. Attorney General Eric Holder also argues that laws regarding sexual orientation should be subject to a higher level of review.

From the official DOJ statement by Attorney General Eric Holder:

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. 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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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. 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.

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.

I agree with Thomas that this is likely not just good policy but also good politics for Obama — either way, that is all good with me. This needed to happen.

More to come.

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  • Nadine

    I find this very alarming. I am 100% against DOMA. But this signals to me a dangerous over-stepping by the Executive Branch. Regardless of the reasons given for discontinuing a legal defense, this has the potential to set very dangerous precedent. The Executive Branch deciding that a law is unconstitutional and said law does not need to be enforced? What will happen when the resident of the Oval Office is anti-woman? Obama won’t be President forever, and I think in the long run it is more important to maintain separation of powers. Let the courts rule on constitutionality.

    • Lauren

      Don’t be alarmed — what Obama is doing is well within the purview of the Executive Branch’s authority.

      Holder didn’t say that DOMA is unconstitutional “by order of his majesty’s decree” or something along those lines. He said Obama believes that Provision 3 is unconstitutional, and the Justice Department will not be defending it in court when lawsuits (there are at least two pending) are heard.

      This is important symbolically/politically and means that federal resources will not be used to argue that the provision should remain in place. The courts will rule on constitutionality, as you say.

    • Stacey


      DOMA is not gone just because they made this declaration. The law will still be enforced and in fact, Congress can appoint someone to defend it, if they choose. All this decision says is that the DOJ will tell courts that they believe it to be unconstitutional and that it should be subjected to a higher standard of scrutiny when it’s challenged. The higher standard automatically assumes a law is unconstitutional and requires the government to explain why it isn’t vs. the lesser standard that assumes a law is constitutional and requires the aggrieved party to explain why it isn’t.

      It’s legally significant, but it’s certainly not a fiat striking down a law simply because the administration doesn’t agree with it.

      • Stacey

        whoops, I meant to address my comment to Nadine…

  • Leticia

    Republicans should be happy about this- not taking on same-sex marriage lawsuits will save the federal government some money. Anyone want to take bets on whether or not that will be the case?

  • Véronique

    Keep in mind that a federal district court already ruled Section 3 unconstitutional. This pronouncement simply agrees with that ruling and, I presume, discontinues the appeal that was launched in October of last year.