Wednesday, February 23, 2011

The President and DoJ Decline To Further Defend DOMA...Time To Celebrate?

Some Days I log on to the Internet and simply can't believe what I read....and todays news has totally left me gobsmacked. Chief Attorney General Eric Holder has released a statement that the Department of Justice will no longer defend DOMA's section three. In addition, this means that President Obama has taken the official, public stance that he believes DOMA to be unconstitutional. You heard that correctly. The same president that has been ducking and weaving around taking an official stance on the Defense of Marriage Act has not only come out against it...but come out swinging.

The details of this announcement are still emerging and are still somewhat subject to the fog of war. While the news is on almost every site imaginable,  the discussion and analysis of the President and DoJ's move is still somewhat conflicting. However, while this may not be the killing blow to DOMA it definitely removes it's bullet proof vest. but what does all this really mean in a practicle sense?

Ari Ezra Waldman, writing for Towleroad, has offered his own legal analysis of what the DoJ's announcement mean for the struggle to repeal DOMA. I recommend that my readers check it out for themselves because there is a huge possibility that my understanding of this can be flawed. However, in a nutshell this is what I gather....

Waldman pointed out that DOMA is not dead for a couple of important reasons. First, even if the DoJ  does not defend DOMA in court, congressional leaders have a right to defend any law duly enacted by congress. In my opinion, the new crop of tea party republicans in Washington are probably already salivating at the chance to do so. Given the insane things they say in public...this may be a good thing.

Secondly, the Attorney General addressed the issue of what basis is to be used in determining the constitutionality of DOMA in the second Circuit Court:

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

It is Waldman's view that which basis the courts use...the more permissive rational basis...or the much more strict heightened scrutiny criteria is a matter that the court can chose for them selves. The recommendation of Attorney General Holder is just that...a recommendation. Waldman also asserts that the type of scrutiny the courts are to use in evaluating DOMA will in all likelihood end up being heard as a separate court case. addition to glacially slow progress DOMA will be taking through the courts on it's own, it's possible that the courts will also be hearing the subject of what standard to use in evaluating DOMA. As if things weren't taking long enough...*sigh*

So, while today's event is a very good thing, it comes tempered with the knowledge that we are in for a long and costly fight before we will see DOMA gone by any judicial means. That will still probably be faster than waiting on things to change in Congress, which could be a big..fat..NEVER.

since the announcement has gone public it has caused ripples of shock everywhere...from jubilation in some, to alarm in others. Everyone has an opinion and/or wants to jump on the bandwagon. Maggie Gallagher of the National Organisation For Marriage on Fox News, made the comment that the President "just made gay the same as black"...stay classy Maggie. Republican House Speaker John Boehner claims that "now is not the appropriate time"....of course, did we expect anything else from him? And finally, Senator Dianne Feinstein(D) is claiming that she will introduce legislation in Congress calling for the repeal of DOMA, prompting many of us to ask, "why now?" After all, Democrats did nothing but balk when they had a majority. Would any legislation introduced now ever see the light of day? As you can see, we are not even 24 hours away from this announcement and people are scrambling to react.

What will ultimately come of this remains to be seen. To me it feels a bit like the scene in Star Wars: A New Hope in which rebel leaders discover that the dreaded Death Star has a weakness and everyone has to mobilize to exploit it before it shows up and blows them into atoms. We all know what happened there...can we be so lucky? Only time will tell.

Until next time dear readers....


  1. If I understand the position of the Justice Department, it is only the Federal definition of marriage that is unconstitutional because marriage is a state matter, not a Federal one. The parts of the law that allow some states to ignore the legal marriages of other states is still valid under Article IV, which gives Congress the power to determine which public contracts, &c. are valid across state lines. It'll be awhile before the law is off the books completely off the books.

  2. *sigh* So many obstacles, so much time. But your "assault on the Death Star briefing scene" analogy was a good one. I hope we've found DOMA's exhaust port today.

  3. This has been interesting news, some brighter news amoungst the other very important stories that have been filling the TV screens, blogs and news pages. Thanks for the brake down of it!!

  4. Ok, I hate to be the "debbie downer" at this party, but DOMA isn't gone yet. Not even close to being gone. Today's announcement is FANTASTIC NEWS and makes the path to the US Supreme Court for the current pending lawsuits that much clearer but DOMA still is the law of the land.

    So pardon me if I don't feel like popping champaign corks just yet..

    No gay couple can file a joint federal tax return, I still can't sponsor my husband for immigration to the United States. (Though it is kinda a freaky coinkydink that the day AFTER I receive my Spousal Visa to move to the UK to be with my husband, and blog extensively about the imact DOMA has had on our lives, the DOJ Makes this announcement... Mind you, I'm not taking credit for this but hey... *Smirk*) Ok, back to reality...

    All that being said, I am VERY happy to see the Obama Administration start to "walk the walk" and not just talk about DOMA. It gives Eric and I hope that someday we may actaully be able to move back to the United States.

  5. I'm not an attorney, but it seems to me that DOMA is unconstitutional because of the "full faith and credit" clause in the US constitution. No state is allowed to ignore/disparage another state's laws. And that's precisely what DOMA does, since marriage laws under the constitution are clearly a state, not federal, responsibility. Just saying --- I dunno.

  6. @Calculusgott
    The full faith and credit clause gives the Congress authority to determine the how state laws apply in other states:

    "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof" Article IV, Section 1 US Constitution.

    The Supreme Court in 1939 also found that this clause does not require one state to recognize laws of other states that are at odds with their own laws:

    "And in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events." Pacific Employers Insurance v Industrial Accident.

    The Supreme Court will ultimately have to determine if state same-sex marriages are legally valid under Article IV, Section 1, but it doesn't look good. But it does seem like a usurpation of States rights to have a Federal definition of marriage as section 3 of DOMA does.

  7. I love and support our president as an alternative to the previous 8 years, but he does disappoint at times. I am reminded of the song "The Sidestep" (performed by Charles Durning) in The Best Little Whorehouse in Texas where the governor waits for opinion poll results before making any statement.

    That being said, Red Two out!