Still, it was a dramatic, unexpected, and significant move by the Obama administration and one that could trigger maneuvers by DOMA supporters to appoint an intervenor to defend the law. Beyond the eventual legal consequences of the announcement, the impact was characterized by most LGBT leaders as historic.

“This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people,” said Jon Davidson, legal director for Lambda Legal Defense and Education Fund.

NCLR Executive Director Kate Kendell put it even more strongly.

“The president’s leadership on this issue has forever changed the landscape for LGBT people in this country,” said Kendell. “For the first time, the president and the Department of Justice have recognized that laws that harm same-sex couples cannot be justified. This is the beginning of the end, not just for the mean-spirited and indefensible Defense of Marriage Act, but for the entire panoply of laws that discriminate against same-sex couples.”

Defending vs. enforcing

Congress passed the Defense of Marriage Act in 1996 and President Clinton signed it into law. The law bans same-sex couples from receiving any of the 1,138 federal benefits and responsibilities of marriage. Those include Social Security survivor benefits, spousal insurance for federal employees, the right to sponsor a spouse for immigration, the right to file a joint tax return, and many others.

Attorney General Eric Holder announced Feb. 23 that the Department of Justice would not defend the constitutionality of Section 3 of DOMA in two of the four cases where that section of the law is currently under challenge. Those two cases are Pedersen v. OPM, filed by Gay & Lesbian Advocates & Defenders, and Windsor v. United States, filed by the ACLU.

Two other cases — in the First Circuit — also challenge Section 3, which prohibits federal recognition of any same-sex marriage, as does a more narrow case, Golinski v. OPM, in the 9th Circuit, at the district court level.

DOMA Section 2, which enables states to ignore valid marriage licenses issued to same-sex couples from other states, has not yet been challenged in court and Holder made no reference to it.

Since entering the White House, President Obama has said that DOMA should be repealed, but his administration continued to defend the law, saying Obama was concerned about setting a precedent that would make it easier for some future administration to pick and choose which laws it would defend.

But in his announcement, Attorney General Holder said the Obama administration would enforce DOMA, but no longer defend it.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s ‘Don’t Ask, Don’t Tell’ policy. Several lower courts have ruled DOMA itself to be unconstitutional,” Holder said.

“Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the president has informed me that the Executive Branch will continue to enforce the law.

“But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this administration will no longer assert its constitutionality in court.”

Rational basis vs. heightened scrutiny

Holder noted that the administration would still defend DOMA Section 3 in the two First Circuit cases because the First Circuit has ruled that rational basis is sufficient justification for treating people differently based on their sexual orientation. (He was apparently referring to the unsuccessful class action case challenging “Don’t Ask, Don’t Tell”).

But Holder noted DOJ attorneys would argue the court should, instead, apply a stricter test — heightened scrutiny — for DOMA.

Lambda Legal Marriage Project Director Jenny Pizer said the First Circuit would make its own decision about whether to adopt Holder’s view.

“Any court is going to make its own determination about what the law requires,” said Pizer. “The government is usually given particular credence, but it is always court’s job to decide what the law requires.”

But Pizer noted that the increasing volume of voices declaring the injustice of DOMA can have an influence, particularly given that the arguments made in support of DOMA “are not even coherent.”

Lambda’s Pizer said she thinks it is “very likely” someone will ask the First Circuit for permission to serve as a defendant-intervenor in the DOMA cases. And she noted Congress can appoint its own counsel to defend the law.

Anthony Romero, executive director of the ACLU, which filed one of the 2nd Circuit cases, praised President Obama doing “the right thing.”

“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,” he said. “DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America.”

 

Top photo: President Barack Obama has deemed the federal Defense of Marriage Act unconstitutional as applied to same-sex couples who are married under state law. (Courtesy White House)

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