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Obama Administration Says DOMA Is Unconstitutional and Will Not Defend It In Court

By Howard M. Friedman

The Department of Justice announced yesterday that the Obama administration has concluded that Sec. 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional and will no longer defend it in court. That section defines marriage for purposes of federal law as "only a legal union between one man and one woman as husband and wife."  The Justice Department's legal rationale was spelled out more fully in a letter to Congress (full text) which, under 28 USC Sec. 530D , the Attorney General is required to submit whenever the Justice Department decides to refrain from defending the constitutionality of any provision of federal law.

The DOJ decision, which was approved by the President, comes in two suits against the United States filed in district courts in New York and Connecticut.  In prior district court cases, the Justice Department had defended DOMA under rational basis review that had been established as the controlling standard by the Circuit Court in the district in which the case was brought.  The Second Circuit, however, has no binding precedent on the level of review that should be applied in sexual orientation cases, so the Justice Department for the first time was faced with the necessity of taking an affirmative position on whether heightened scrutiny should apply.

In his lengthy letter to Congress, Attorney General Eric Holder wrote in part:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals ?exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group?; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual?s ?ability to perform or contribute to society.? ... Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation....

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.... [But] none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny.... [ Neither Lawrence v. Texas nor Roemer v. Evans] reached, let alone resolved, the level of scrutiny issue because in both the [Supreme] Court concluded that the laws could not even survive the more deferential rational basis standard.

Despite this determination, the Executive Branch will continue to enforce DOMA until Congress repeals it or a court definitively declares it unconstitutional.  The United States will also remain as a party in the pending cases and will notify the courts of the government's interest in providing Congress an opportunity to participate in the litigation.

Full post as published by Religion Clause on February 24, 2011 (boomark / email).