by Mike Andrew -
SGN Staff Writer
President Barack Obama has ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act (DOMA), according to a statement issued by Attorney General Eric Holder on February 23.
'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 said.
According to Holder, President Obama believes that Section 3 of DOMA 'fails to meet that standard and is therefore unconstitutional.'
'Given that conclusion, the president has instructed the [Justice Department] not to defend the statute' in two pending cases, Holder said.
'I fully concur with the president's determination,' Holder added.
DOMA passed in 1996, with a large majority in both Houses of Congress.
Section 3 is the piece of the law that defines marriage in terms of opposite-sex couples.
'[T]he word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife,' it says.
President Obama has said in the past that he wants DOMA to be repealed, but until now he has also asked the Justice Department to defend the law in court.
Letter to Speaker Boehner
Also on February 23, Holder sent a letter to House Speaker John Boehner, outlining the Justice Department's legal analysis of Pedersen v. OPM and Windsor v. United States, the two cases immediately affected by the president's order.
At the conclusion of his letter, Holder tells Boehner that '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.'
Boehner was not pleased by the president's decision.
'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,' he said in a terse reaction to Holder's letter.
In contrast, Sen. Diane Feinstein (D-Calif.) hailed Holder's announcement, and promised to introduce a DOMA repeal bill in the US Senate.
'As a Member of the Judiciary Committee, it is my intention to introduce legislation that will once and for all repeal the Defense of Marriage Act,' Feinstein said.
'My own belief is that when two people love each other and enter the contract of marriage, the Federal government should honor that. I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now; and it should be repealed.'
Last year, Rep. Jerrold Nadler (D-N.Y.) introduced a DOMA repeal bill in the U.S. House of Representatives. Until now, it has not had a Senate companion bill.
Nadler's bill did not get a committee hearing while Democrats were in control of the House, and repeal is even less likely to go forward now that Republicans have the majority.
Reaction of human rights groups
Human rights groups greeted Holder's announcement with enthusiasm.
Gay and Lesbian Advocates and Defenders (GLAD), the group that filed Pedersen v. OPM, one of the cases Holder cited in his letter to Boehner, said that '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.'
The ACLU, which filed the other case, Windsor v. United States, said, 'The president did the right thing and just propelled Gay rights into the 21st century, where it belongs. Our government finally recognizes what we knew 14 years ago - that the so-called 'Defense of Marriage Act' is a gross violation of the Constitution's guarantee of equal protection before the law.'
'I am very pleased that the Department of Justice and President Obama have determined that the federal Defense of Marriage Act is unconstitutional. This is a position that we have held and argued since we filed our lawsuit in July 2009,' said Massachusetts Attorney General Martha Coakley, who has filed her own challenge to DOMA, Massachusetts v. U.S. Department of Health and Human Services.
'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,' said HRC President Joe Solmonese.
Bigots are outraged
Anti-Gay groups were predictably outraged by President Obama's decision.
'This decision by President Obama and the Department of Justice is appalling,' the Family Research Council said.
'This is outrageous and unthinkable,' Liberty Counsel added.
'We have not yet begun to fight for marriage,' NOM threatened.
'The Democrats are responding to their election loss with a series of extraordinary, extra-constitutional end runs around democracy, whether it's fleeing the state in Wisconsin and Indiana to prevent a vote, or unilaterally declaring homosexuals a protected class under our Constitution, as President Obama just did.
'We call on the House to intervene to protect DOMA, and to tell the Obama administration they have to respect the limits on their power. This fight is not over, it has only begun!'
Why does it matter?
The Justice Department is not the only agency that may defend DOMA in court. For example, Speaker of the House Rep. Boehner could decide to intervene to defend a duly enacted law passed by Congress.
Even if he does not do so, the 2nd U.S. Circuit Court, where the two cases Holder cites are being heard, is not required to accept the Justice Department's legal analysis.
Nevertheless, President Obama's order to the Justice Department is important because it acknowledges the history of discrimination against the LGBT community and establishes a fairly strict standard for examining the constitutionality of laws relating to the LGBT community.
'The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation,' Holder says in his letter to Boehner.
'It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies.'
'Heightened scrutiny' means that the Obama administration considers sexual orientation to be a 'suspect classification' - like race - that requires review under the Equal Protection clause of the 5th Amendment for reasons Holder lists in his letter:
'[A] significant history of purposeful discrimination against Gay and Lesbian people, by governmental as well as private entities & a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable & [history shows] the group to have limited political power and ability to attract the [favorable] attention of the lawmakers & [and] there is a growing acknowledgment that sexual orientation bears no relation to ability to perform or contribute to society.'
In this case, 'heightened scrutiny' contrasts with the less strict 'rational basis' standard of review.
To be found constitutional under 'heightened scrutiny,' a law like DOMA would have to address a compelling national interest in ways that are directly related to that interest.
The less restrictive 'rational basis' test simply means that lawmakers have to base laws on reasonable assumptions, and not on their own prejudices.
For example, the Washington Supreme Court upheld our state's DOMA in 2006 on the rational basis test, ruling that it would be reasonable for lawmakers to think that the state had an interest in protecting opposite-sex marriage.
It is not clear that Washington state's DOMA would pass the heightened scrutiny test.
In the main dissent, Justice Mary Fairhurst argued that the law was unconstitutional on both the rational basis test, and on grounds that it violated the equal protection clause of the state constitution.
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