"And then a miracle occurred."
Obama Orders End to Defense of Gay Marriage Law - NYTimes.com
By CHARLIE SAVAGE
WASHINGTON — President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.
Attorney General Eric H. Holder Jr. sent a letter to Congress on Wednesday saying that the Justice Department will now take the position in court that the act should be struck down as a violation of same-sex couples’ rights to equal protection under the law.
“The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law,” a crucial provision of the act is unconstitutional, Mr. Holder wrote....
In gay rights victory, Obama administration won't defend Defense of Marriage Act
By Jerry Markon, Ed O'Keefe and Sandhya Somashekhar
Washington Post Staff Writers
Wednesday, February 23, 2011; 3:16 PM
The Obama administration announced Wednesday that it will no longer defend the constitutionality of the federal government's ban on recognizing same-sex marriages, a rare legal reversal and the latest in a series of political victories for gay rights activists.
The Justice Department had appealed the decision of a federal judge in Massachusetts who struck down the Defense of Marriage Act in July, saying it was obligated to defend federal statutes. The 1996 law defines marriage from the federal perspective as between a man and a woman, which means same-sex married couples are denied access to marriage-based federal benefits.
In an extraordinary change, Attorney General Eric H. Holder Jr. said Wednesday that he and President Obama had determined - after an extensive review - that the law's key section is unconstitutional. "Given that conclusion, the President has instructed the Department not to defend the statute" in court, Holder said in a statement.
Administration officials said the review was triggered by a court-imposed filing deadline in two new legal challenges to the Defense of Marriage Act, filed in federal courts in New York and Connecticut. [...] Groups opposed to same-sex marriage say they will lobby House Speaker John Boehner (R-Ohio) to hire counsel to defend the law. His office has not said what he will do, but his spokesman Michael Steel criticized the Obama administration for its stand.
"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....
Statement of the Attorney General on Litigation Involving the Defense of Marriage Act
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Wednesday, February 23, 2011
The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:
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.
Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, 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. [...]
I wonder what caused the administration to make this sea change. According to the article, it's the fact that the latest DOMA challenge was filed in New York, and that circuit has no case law stating what level of review to use; this automatically triggers heightened scrutiny, which presumes the law unconstitutional until determined otherwise. I'm not sure that I honestly believe that; on the other hand, it could well be that the administration was just waiting for an excuse to abandon a position that was doing it real damage, not only among the LGBT peoples that had supported them in the last campaign, but with liberals of all stripes. This could have provided them with a legal excuse. After all, if they genuinely believed that legitimate acts of Congress that were constitutional, if utterly revolting, should be defended, then the logical thing to do is not to abandon the defense, but to say to the Second Circuit, "We hate this law, but we think it should be defended, and we think you should use a rational basis test for this and here's why." (That said ... seriously, the Ninth Circuit -- the one with California, yes -- uses "rational basis" for this type of case? The crunchy-granola ultra liberal [for the US court system] Ninth Circuit, which gets reversed with wild abandon, glee and possibly malice aforethought by the Supreme Court at almost every chance it gets? Huh. Who knew?)
Congress will have its own lawyer defend its own law, of course. The administration might be able to strongarm the Senate into letting things go, but the House, being in opposition hands, has a vested interest in ... well, opposing. Depends, I guess, on the voting threshold for appointing an independent prosecutor/counsel, if it requires a supermajority or a simple majority. (I can't imagine that it requires a supermajority, or you'd never get one through.) And this doesn't mean that the administration will stop enforcing the law, unless directed to do so by the courts. It just means they'll stop making those unspeakable, appalling legal arguments in documents that sound as though they were written by the ultra-right wing of the Tea Party.
It's going to be really fascinating to see how this affects cases already in progress. If I understand the way things work -- and I freely admit that I may not -- this might produce a technical default in the Massachusetts case, once documents are amended. And it could theoretically throw yet another monkey wrench into the case in California, which has already effectively been sent back to the California Supreme Court to determine the issue of standing.
The other interesting thing to see is what the administration will do if/when the Second Circuit (in which the New York case originated) pops up and says, regardless of their decision, that the "rational basis" test should be used in determining how these laws and cases should be handled. (And I'd be willing to bet that it will do exactly that.) After all, if the administration position is that the lack of "rational basis" tests for this sort of case in the Second is what determined their current position, and the Second then turns around and says, "We love us some rational basis, oh yes we do!", then what do you do? Do you then say, "Well, if all of the circuits in which cases have been brought say that we should use a rational basis test, then we have to defend this law we find abhorrent but legal(ish)," or do you say, "Eh, we still think it sucks, and we've already tried to default, so we're going to stick with that, thanks."
My, but the next two years promise to be really relentlessly interesting. In the Chinese curse sense of the word, of course.
Posted by iain at February 23, 2011 02:33 PM
