President Barack Obama has decided that he will no longer defend Section 3 of the Defense of Marriage Act against constitutional challenges. In addition, it is his recommendation, based on an understanding of queer people’s historical oppression and experience of discrimination, the classification of sexual orientation should be looked at with heightened scrutiny (a term that our legal beagle explains at length in our Prop 8 Gay Marriage Trial Explained: How Do We Win This Thing?) That’s actually a ton of extremely important and beneficial political change wrapped up in two sentences, so we’ll break it down further for you. Let’s start with DOMA.
Section 3 of DOMA is the part that prohibits the federal government from recognizing same-sex marriage. It was signed into law by Bill Clinton, who we thought was our friend, but apparently was not.
DOMA prevents couples living in states where they can be legally married from getting federal benefits or having their marriage recognized for tax purposes. Obama’s change of position means that the Department of Justice will not defend the constitutionality of Section 3 in the ongoing cases Pedersen v. OPM and Windsor v. United States.
This decision came seemingly out of nowhere. To the best of our knowledge, not even Obama’s staunchest supporters thought this announcement would be made as early as today. Many less optimistic activists didn’t trust Obama to make this move at all before the end of his presidency. The president has always maintained that he wants to see DOMA end, but until today the Department of Justice has continued to defend its existence in court on the basis that it could still advance rational arguments for its continued existence.
Here’s Attorney General Eric Holder’s statement about that:
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.
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. 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.
The two cases immediately affected by this policy, Pedersen and Windsor, are actually what allowed Obama the opportunity to make this statement, which brings us to the issue of intermediate scrutiny. The cases are both in the Second Circuit of the federal court system. As explained by the AG in the letter to Congress, the Second Circuit has no set standard for how to review classifications based on sexuality. Every other DOMA case that Obama has defended happened in other circuits that use a standard of rational basis review for sexuality. This was the first opportunity Obama has had to voice his own opinion on the appropriate standard. He thinks that intermediate scrutiny should apply, and he doesn’t think the arguments in favor of DOMA are good enough to survive intermediate scrutiny, thus he won’t make them in court.
Keep in mind, no court has ruled that sexuality should get intermediate scrutiny. This is simply Obama policing himself, which is good in that it will result in more favorable verdicts for those of us fighting against DOMA. But this does not set up any precedent for how to treat sexuality in the future, say for example in cases about same-sex marriage. The president’s view is excellent persuasive evidence that may shape this debate in the future, but it doesn’t have any binding effect on courts.
Ultimately, the lawsuits brought by brave souls against the federal government are what brought us where we are today. Of course, the battle is far from over. As the Attorney General notes, Section 3 will remain in effect until Congress actually repeals it, and there’s still plenty of legislature on the books that makes life difficult for same-sex couples who want to live a happily married life.
But this is still an extraordinary moment in history. The past few weeks have seen people all over the world sacrificing incredible amounts for small steps towards freedom from oppression, and from Wisconsin to Libya we are awestruck at the tenacity and courage of the average citizen when the basic rights of a community to freedom from harm and persecution are at stake. This is a victory for gay people in America, but also for the fundamental principles of democracy and human decency. It deserves to be celebrated, and so do we for being part of it.
UPDATE! ETA 12:29 PST:
In the wake of this historical news, Senator Dianne Feinstein, D-California, a senior member of the Judiciary Committe, has announced that she will introduce legislation to repeal the federal Defense of Marriage Act (DOMA)!
Feinstein says: “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.”
Republican Senator Jim DeMint says:
“It’s increasingly obvious this President cares little about the Constitution, but cares deeply about pandering to liberal interest groups. Traditional marriage is the foundation of America’s culture, and the President’s refusal to defend marriage undermines our nation’s strength. The Defense of Marriage Act is the law of the land and the President’s administration hasn’t challenged its constitutionality for two years. It’s only in the run-up to reelection that he’s suddenly changed his mind. If the President is seriously concerned about unconstitutional laws, he should abandon his defense of the health care bill.”
So whatever, screw that guy.