This week, the Department of Justice announced it would no longer defend part of the “Defense of Marriage Act. ”
Enacted in 1996, the law limits federal recognition of marriage to one man and one woman (Section 3). The law also exempts individual states from treating same-sex marriages valid in other states as equivalent to marriage (Section 2).
In a Feb. 23 statement, Attorney General Eric Holder said that after careful consideration, President Obama had determined that classifications based on sexual orientation should be more rigorously scrutinized.
Further, “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.”
Based on this finding, the president has directed the DOJ not to defend Section 3 of the statute.
Though numerous lawsuits have been filed challenging the constitutionality of DOMA, the Department of Justice — even under Obama’s administration — has always backed it.
In his statement, Holder referenced two pending lawsuits: “Pedersen v. OPM” and “Windsor v. United States.”
The Pedersen case was filed in November in Connecticut. In the case, the couples involved were legally married in their home states and had applied for programs for which they were otherwise qualified. All had been denied program benefits based on DOMA.
In the Windsor case, filed in November in New York, the federal government refused to recognize a couple’s marriage for tax purposes, even though New York recognizes same-sex marriages performed elsewhere.
The Obama administration’s new statement on DOMA is significant for several reasons.
First, it acknowledges that the DOJ has defended DOMA in several challenges: In those cases, it was challenged in jurisdictions that had circuit court precedents that held that singling out people based on sexual orientation was constitutional if there was a rational basis for the law.
The cases Holder references are under consideration in the 2nd Circuit, which doesn’t have a precedent on how laws related to sexual orientation should be considered.
For the first time, the DOJ had to consider if laws regarding sexual orientation should be subject to a more permissive or a more rigorous standard of review.
Based on a “documented history of discrimination,” the president determined and Holder concurred that classifications based on sexual orientation should be “subject to a more heightened standard of scrutiny.”
Second, it states that DOJ will continue as a party in the aforementioned cases, but will not defend the constitutionality of Section 3. Holder does, however, state he will invite members of Congress to defend it if they wish.
Finally, Holder said DOJ attorneys will advise courts with pending DOMA litigation that a heightened standard should apply, that Section 3 is unconstitutional and that DOJ will not defend it.
If this determination stands, either the courts or Congress will need to take action to fully overturn it.