President Obama Wednesday directed Attorney General Eric Holder to stop battling legal attacks on the federal Defense of Marriage Act, saying he believes the Act unconstitutionally discriminates against gay couples. It’s a move many Obama supporters have anticipated for years with diminishing hope as the attorney general’s office fought back a series of challenges to the Act.
“This courageous announcement sends a powerful message that all committed couples should have equal protections under the law,” said Brad Clark, executive director of gay-rights group OneColorado. “As we continue to evaluate the legal impact of this historic decision, we rejoice that President Obama has realized that he can no longer defend a law that is blatantly unfair and unconstitutional. This decision is the beginning of the end for this attack on loving gay and lesbian couples.”
The Defense of Marriage Act, known as DOMA, prevents the federal government from recognizing marriages of same-sex couples joined in the five states that so far grant legal same-sex marriages. The effect is that the married couples are ineligible to collect federal benefits, such as partner health insurance. The announcement bolsters cases for same-sex marriage and against discrimination based on sexual orientation.
The news comes as Colorado weighs civil unions legislation. The legislation, sponsored by Sen. Pat Steadman, would bestow legal rights and responsibilities upon gay partnerships, such as the right to inherit property, share insurance and make medical decisions for one another.
Colorado voters passed a constitutional amendment in 2006 defining marriage as a relationship into which only a man and a woman can enter.
From a release sent out by Attorney General 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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.
Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and 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. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.
As required by law, Holder also sent House Majority Leader John Boehner a letter notifying him of the change in policy.
“Although sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable… It is undoubtedly unfair to require sexual orientation to be hidden from view in order to avoid discrimination,” Holder writes in the letter. “[S]exual orientation ‘bears no relation to ability to perform or contribute to society.'”
John D. Podesta, president of the Center for American Progress, also celebrated the move and hinted at the coming battle in the Republican-controlled House, where social issues have so far dominated debate.
“Unfortunately, anti-gay leaders in Congress will likely take up DOMA’s defense. We urge them to think twice about this decision and to not tether themselves to a patently discriminatory law that undermines our nation’s fundamental principle of equality.”