The beginning of the end of the Defense of Marriage Act?

[Scooter]

Press release from the White House:

STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON – 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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

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.

Any ideas of what the implications for this policy change will be? What the Justice Dept might consider to be a "final judicial finding" upon which it would rely in deciding to recognize same-sex marriages for federal purposes, especially if, as seems to be implied, lower court rulings that find DOMA unconstitutional will not be appealed?

Does this represent a concrete step, or is it merely a hollow gesture intended to appease a constituency that is justly pissed at this administration for being unwilling to expend political capital on getting DOMA repealed when it had the chance?

[Long Run]

I think it is closer to a hollow gesture than a concrete step because there will be no shortage of defenders of DOMA in the legal cases.

Does anyone have any other examples of an administration, federal or state, which is bound to uphold the law, refusing to do so? It is very common to have an administration's justice department defending laws that the political side of the administration would like to see repealed.

[Andrew D]

I don't have the case right off hand, but the DOJ refused to defend a federal statute which effectively changed the Miranda rule.

[Scooter]

And if the administration refuses to defend a statute, who would have standing to do so and carry it through appeals? Could individual members of Congress do so, or could it only be done in the name of Congress by passing some sort of resolution authorizing it, or what?

[Lord Jim]

Does anyone have any other examples of an administration, federal or state, which is bound to uphold the law, refusing to do so?

The same thing is happening now in California, with the Governor and the AG's office both refusing to oppose the challenges to the voter passed State Constitutional amendment banning gay marriage. And the same questions of who has standing to appeal are in play.

And if the administration refuses to defend a statute, who would have standing to do so and carry it through appeals? Could individual members of Congress do so, or could it only be done in the name of Congress by passing some sort of resolution authorizing it, or what?

That's a very good question....

Going beyond this piece of legislation, if the answer is "no one has standing" what is to prevent any Administration from thwarting the will of Congress over any legislation it doesn't like by taking the same position?

[rubato]

He defended the law until it became obvious to him, and the AGs office, that it conflicted with the Constitution and could not be defended.

The same is true in California.

It is the beginning of the end for the Gay-Hate groups. But just the beginning for cynical office seekers. Republicans will continue to curry their favor for votes just as they continued to curry the favor of racists for votes.

yrs,
rubato

[Scooter]

The same thing is happening now in California, with the Governor and the AG's office both refusing to oppose the challenges to the voter passed State Constitutional amendment banning gay marriage. And the same questions of who has standing to appeal are in play.

The federal appeals court has thrown back to the state Supreme Court the question of who. if anyone, has standing to appeal in a case involving a law enacted by referendum, e.g. could the sponsor of the ballot initiative take it up in appeals if the government refused to do so, or could the government be forced to defend the law in federal court even if it believed the law to be unconstitutional federally. The federal appeals court has made clear that it would disniss the appeal without a direction from the state Supreme Court that any would have standing to appeal. There is also a bill pending in California Assembly to require the government to defend such laws in court through all appeals (which will probably go nowhere).

Going beyond this piece of legislation, if the answer is "no one has standing" what is to prevent any Administration from thwarting the will of Congress over any legislation it doesn't like by taking the same position?

I think the approach taken here precludes refusing to defend legislation solely on the basis that the administration "doesn't like it". The rationale for no longer defending this law is that, in the administration's view, no rational argument exists which could be advanced to defend its constitutionality, given the standard of scrutiny which is applicable to legislation of this nature. I think that would be a pretty high bar to achieve in the vast majority of cases as justification for refusing to defend a law.

[quaddriver]

He defended the law until it became obvious to him, and the AGs office, that it conflicted with the Constitution and could not be defended.

The same is true in California.

It is the beginning of the end for the Gay-Hate groups. But just the beginning for cynical office seekers. Republicans will continue to curry their favor for votes just as they continued to curry the favor of racists for votes.

yrs,
rubato

This is still the USA. Should it be struck down, plenty of 'republicans' and non republicans will head to the polls and vote to enact something else. The USA does not have a logistical or consciencious block to passing anti-gay marriage legislation.

Or we could ask the democrats why they didnt wrap this up for good when they controlled everything.....

[dgs49]

As I understood it (by reading headlines, mainly), the import of the DOMA was that states would not have to recognize "marriages" from other states that would not have been valid in their own state. Thus, the participation of the federal DOJ is not essential to the enforcement or validity of the law. A state can just refuse to comply with another state's law and the Plaintiff is out of luck. (this happens all the time, by the way, in family law cases).

Further, getting one state to recognize a domestic partner law of another state is problematic for a lot of reasons. Inheritance? Alimony and child support? Property division on "divorce"? "Divorce" itself?

But the interesting thing here is that the change at DOJ policy was supposedly triggered by The President reviewing the law and the Constitution and CONCLUDING THAT THE LAW WAS UNCONSTITUTIONAL!

What?

You mean he finally gets it? He finally understands that he, as President, who has sworn to uphold and defend the Constitution is actually supposed to do that?

The official position of the Democrat Party in both the Congress and the Executive Branch has been for quite some time that they will pass and execute whatever laws they want, and leave it to the Courts to decide whether they are Constitutional or not.

This totally dishonest and disreputable position (and violation of their respective oaths of office) has been advanced with no real challenges from anyone.

But I think it would be nice for the President or his minions to publish a coherent legal opinion, explaining how they came to their Constitutional conclusion. It would be entertaining reading, for sure.

[Crackpot]

Looking at it from an extremely cynical (and paranoid) perspective it could be a play at breaking up the Tea Party by dividing them along lines of social conservatives and Libritarians.

[Long Run]

DOMA also has a substantially discriminatory impact when it comes to federal taxes and federal benefits (e.g., Social Security survivor benefits), so it goes beyond one state having to honor a gay marriage from another state. IMO, it would have been a good thing if the Administration had worked with its prior friendly Congress to eliminate DOMA or substantially limit its discriminatory impact.

That said, it is preposterous to suggest there is no reasonable argument to be made for supporting the constitutionality of DOMA. This is politics, pure and simple. It is an irresponsible shirking of its administrative duties for political expediency. Scooter had it right in his initial post -- this is an attempt by the Administration to mollify a key constituency after not making a substantive change when it had a chance.

However, it is understandable why the Administration did not take on modifying or eliminating DOMA: it would have been a major political battle, and the Administration used up its political energy on healthcare reform and eliminating "don't ask don't tell", among other agenda items. It paid a heavy price for former and spent a lot of time and energy on the latter. They correctly determined that they could win the "don't ask don't tell" without too much political damage, but a DOMA fight likely would have been much tougher and costlier. On top of that, he had to deal with a terrible economy and financial crisis, that were his top priorities for some time, as well as dealing with two wars. The president might fairly wonder why his key consituencies don't cut him a little slack for not repealing DOMA, given the realities of what he faced.

[Scooter]

Should be interesting to see, with these numbers, whether Republicans will put up more than a token effort to save DOMA from a court challenge:

More than half of Americans say it should be legal for gays and lesbians to marry, a first in nearly a decade of polls by ABC News and The Washington Post.

This milestone result caps a dramatic, long-term shift in public attitudes. From a low of 32 percent in a 2004 survey of registered voters, support for gay marriage has grown to 53 percent today. Forty-four percent are opposed, down 18 points from that 2004 survey.

The issue remains divisive; as many adults "strongly" oppose gay marriage as strongly support it, and opposition rises to more than 2-1 among Republicans and conservatives and 3-1 among evangelical white Protestants, a core conservative group. But opposition to gay marriage has weakened in these groups from its levels a few years ago, and support has grown sharply among others – notably, among Catholics, political moderates, people in their 30s and 40s and men.

The results reflect a changing albeit still polarized climate. Gay marriage has been legalized in five states and the District of Columbia, by court ruling or legislative action, since 2003, while many other states prohibit it. The Obama administration late last month said it would no longer defend the constitutionality of the Defense of Marriage Act, a 1996 law banning federal recognition of gay marriages.

GROUPS – While younger adults and liberals remain at the forefront of support for gay marriage, the new results underscore its expansion. In an ABC/Post poll five and a half years ago, for example, under-30s were the sole age group to give majority support to gay marriage, at 57 percent. Today it's 68 percent in that group – but also 65 percent among people in their 30s, up a remarkable 23 points from the 2005 level; and 52 percent among those in their 40s, up 17 points.

Adults 50 and older remain more skeptical, but even that's seen change. Most notably, 33 percent of seniors now say gay marriage should be legal, up from 18 percent five years ago.

Trends among other groups are equally striking. Compared with five years ago support for gay marriage has grown by 10 points among women, but by 18 points among men; it's now at parity. Support has grown by 17 points among Democrats, but also by 13 points among independents, to a clear majority, 58 percent, in the crucial political center. And it's 63 percent among moderates, up 21 points.

The poll has an insufficient sample size to evaluate individual racial minority groups reliably. However, support for gay marriage is essentially identical among whites, 53 percent, and nonwhites, 54 percent. That's up by 13 points among whites – and by 20 among nonwhites.

Support is up by a striking 23 points among white Catholics, often a swing group and one that's been ready, in many cases, to disregard church positions on political or social issues. But they have company: Fifty-seven percent of non-evangelical white Protestants now also support gay marriage, up 16 points from its level five years ago. Evangelicals, as noted, remain very broadly opposed. But even in their ranks, support for gay marriage is up by a double-digit margin.

METHODOLOGY – This ABC News/Washington Post poll was conducted by telephone March 10-13, 2011, among a random national sample of 1,005 adults, including landline and cell-phone-only respondents. The results from the full survey have a 3.5-point error margin. The survey was produced for ABC News by Langer Research Associates of New York, with sampling, data collection and tabulation by TNS of Horsham, PA.

For full methodology and questionaire, click HERE.

[dgs49]

As with most polls, it's all in how you ask the questions.

Try this: "Do you believe that a state which has rejected gay marriage by law should be compelled to recognize a gay 'marriage' from another state?"

I suspect the responses would be somewhat different.

[Scooter]

I suspect so, given that it is a completely different and irrelevant question to the matter at hand, which is the federal government refusing to recognize marriages which are legal in some states.

Of course, if and when the SCOTUS ever decides on a same-sex version of Loving v. Virginia....

[Scooter]

btw, the question actually asked was, "do you think it should be legal or illegal for gay and lesbian couples to get married? Do you feel that way strongly or somewhat?"

No doubt someone will find a way of spinning that as an incredibiy biased way to ask the question

[rubato]

As with most polls, it's all in how you ask the questions.

Try this: "Do you believe that a state which has rejected gay marriage by law should be compelled to recognize a gay 'marriage' from another state?"

I suspect the responses would be somewhat different.

It is identical to the question of whether a state which does not allow mixed-race marriage should be compelled to recognize a mixed-race marriage from another state, as scooter suggests.



yrs,
rubato

[Andrew D]

What?

You mean he finally gets it? He finally understands that he, as President, who has sworn to uphold and defend the Constitution is actually supposed to do that?

And I am sure that you were just as outraged when Reagan and his henchmen were busily violating the law by supporting the contras.

[Scooter]

Does anyone have any other examples of an administration, federal or state, which is bound to uphold the law, refusing to do so?

Scott Walker is now refusing to defend a domestic partnership law which he claims is unconstitutional. Funny that the chorus of Republicans who crawled up Obama's ass over his refusal (in certain circumstances) to defend DOMA are strangely silent now, as they were when the Republican attorney general of the state took the same position under the previous administration.