[{"@context":"https:\/\/schema.org\/","@type":"BlogPosting","@id":"https:\/\/equallywed.com\/obama-to-dept-of-justice-doma-is-unconstitutional\/#BlogPosting","mainEntityOfPage":"https:\/\/equallywed.com\/obama-to-dept-of-justice-doma-is-unconstitutional\/","headline":"Obama to Dept. of Justice: DOMA is Unconstitutional","name":"Obama to Dept. of Justice: DOMA is Unconstitutional","description":"By Kirsten Palladino President Obama has determined that DOMA, the Defense of Marriage Act, is unconstitutional and the Department of Justice should no longer use...","datePublished":"2011-02-23","dateModified":"2021-06-21","author":{"@type":"Person","@id":"https:\/\/equallywed.com\/author\/admin\/#Person","name":"Equally Wed","url":"https:\/\/equallywed.com\/author\/admin\/","identifier":787,"image":{"@type":"ImageObject","@id":"https:\/\/secure.gravatar.com\/avatar\/ca62cf123aaaf135c80b055249bacbda79de9226e11cdfcde6529bedf89683de?s=96&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/ca62cf123aaaf135c80b055249bacbda79de9226e11cdfcde6529bedf89683de?s=96&r=g","height":96,"width":96}},"publisher":{"@type":"Organization","name":"Equally Wed","logo":{"@type":"ImageObject","@id":"http:\/\/equallywed.com\/wp-content\/uploads\/2018\/08\/equally-wed-lgbtq-weddings-logo.jpg","url":"http:\/\/equallywed.com\/wp-content\/uploads\/2018\/08\/equally-wed-lgbtq-weddings-logo.jpg","width":218,"height":60}},"image":{"@type":"ImageObject","@id":"https:\/\/equallywed.com\/wp-content\/uploads\/headlines-marriage-equality-obama.jpg","url":"https:\/\/equallywed.com\/wp-content\/uploads\/headlines-marriage-equality-obama.jpg","height":393,"width":500},"url":"https:\/\/equallywed.com\/obama-to-dept-of-justice-doma-is-unconstitutional\/","about":["Marriage Equality News"],"wordCount":2012,"articleBody":" By Kirsten PalladinoPresident Obama has determined that DOMA, the Defense of Marriage Act, is unconstitutional and the Department of Justice should no longer use it in court to defend discrimination against gays and lesbians. We’ll have more updates as they become available. Here is the letter in its entirety:Dear Mr. Speaker:After careful consideration, including review of a recommendation  from me, the President of the United States has made the determination  that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. \u00a7 7, as  applied to same-sex couples who are legally married under state law,  violates the equal protection component of the Fifth Amendment.    Pursuant to 28 U.S.C. \u00a7 530D, I am writing to advise you of the  Executive Branch’s determination and to inform you of the steps the  Department will take in two pending DOMA cases to implement that  determination.While the Department has previously defended DOMA against legal  challenges involving legally married same-sex couples, recent lawsuits  that challenge the constitutionality of DOMA Section 3 have caused the  President and the Department to conduct a new examination of the defense  of this provision.  In particular, in November 2011, plaintiffs filed  two new lawsuits challenging the constitutionality of Section 3 of DOMA  in jurisdictions without precedent on whether sexual-orientation  classifications are subject to rational basis review or whether they  must satisfy some form of heightened scrutiny.  Windsor v. United  States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750  (D. Conn.).  Previously, the Administration has defended Section 3 in  jurisdictions where circuit courts have already held that  classifications based on sexual orientation are subject to rational  basis review, and it has advanced arguments to defend DOMA Section 3  under the binding standard that has applied in those cases.These new lawsuits, by contrast, will require the Department to take  an affirmative position on the level of scrutiny that should be applied  to DOMA Section 3 in a circuit without binding precedent on the issue.   As described more fully below, 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, Section 3 of DOMA is unconstitutional.Standard of ReviewThe 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.”  See Bowen  v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne  Living Ctr., 473 U.S. 432, 441-42 (1985).Each of these factors counsels in favor of being suspicious of  classifications based on sexual orientation.  First and most  importantly, there is, regrettably, a significant history of purposeful  discrimination against gay and lesbian people, by governmental as well  as private entities, based on prejudice and stereotypes that continue to  have ramifications today.  Indeed, until very recently, states have  “demean[ed] the[] existence” of gays and lesbians “by making their  private sexual conduct a crime.”  Lawrence v. Texas, 539 U.S. 558, 578  (2003).Second, while sexual orientation carries no visible badge, a growing  scientific consensus accepts that sexual orientation is a characteristic  that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it  is undoubtedly unfair to require sexual orientation to be hidden from  view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of  2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).Third, the adoption of laws like those at issue in Romer v. Evans,  517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and  lesbians in the military, and the absence of federal protection for  employment discrimination on the basis of sexual orientation show the  group to have limited political power and “ability to attract the  [favorable] attention of the lawmakers.”  Cleburne, 473 U.S. at 445.   And while the enactment of the Matthew Shepard Act and pending repeal of  Don’t Ask, Don’t Tell indicate that the political process is not closed  entirely to gay and lesbian people, that is not the standard by which  the Court has judged “political powerlessness.”  Indeed, when the Court  ruled that gender-based classifications were subject to heightened  scrutiny, women already had won major political victories such as the  Nineteenth Amendment (right to vote) and protection under Title VII  (employment discrimination).Finally, there is a growing acknowledgment that sexual orientation  “bears no relation to ability to perform or contribute to society.”   Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality).  Recent  evolutions in legislation (including the pending repeal of Don’t Ask,  Don’t Tell), in community practices and attitudes, in case law  (including the Supreme Court’s holdings in Lawrence and Romer), and in  social science regarding sexual orientation all make clear that sexual  orientation is not a characteristic that generally bears on legitimate  policy objectives.  See, e.g., Statement by the President on the Don’t  Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that  sacrifice, valor and integrity are no more defined by sexual orientation  than they are by race or gender, religion or creed.”)To be sure, there is substantial circuit court authority applying  rational basis review to sexual-orientation classifications.  We have  carefully examined each of those decisions.  Many of them reason only  that if consensual same-sex sodomy may be criminalized under Bowers v.  Hardwick, then it follows that no heightened review is appropriate – a  line of reasoning that does not survive the overruling of Bowers in  Lawrence v. Texas, 538 U.S. 558 (2003).  Others rely on claims regarding  “procreational responsibility” that the Department has disavowed  already in litigation as unreasonable, or claims regarding the  immutability of sexual orientation that we do not believe can be  reconciled with more recent social science understandings.  And 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.  Finally, many of the more recent decisions have relied on the  fact that the Supreme Court has not recognized that gays and lesbians  constitute a suspect class or the fact that the Court has applied  rational basis review in its most recent decisions addressing  classifications based on sexual orientation, Lawrence and Romer.  But  neither of those decisions reached, let alone resolved, the level of  scrutiny issue because in both the Court concluded that the laws could  not even survive the more deferential rational basis standard.Application to Section 3 of DOMAIn reviewing a legislative classification under heightened scrutiny,  the government must establish that the classification is “substantially  related to an important government objective.”  Clark v. Jeter, 486 U.S.  456, 461 (1988).  Under heightened scrutiny, “a tenable justification  must describe actual state purposes, not rationalizations for actions in  fact differently grounded.”  United States v. Virginia , 518 U.S. 515,  535-36 (1996).  “The justification must be genuine, not hypothesized or  invented post hoc in response to litigation.”  Id. at 533.In other words, under heightened scrutiny, the United States cannot  defend Section 3 by advancing hypothetical rationales, independent of  the legislative record, as it has done in circuits where precedent  mandates application of rational basis review.  Instead, the United  States can defend Section 3 only by invoking Congress’ actual  justifications for the law.Moreover, the legislative record underlying DOMA’s passage contains  discussion and debate that undermines any defense under heightened  scrutiny.  The record contains numerous expressions reflecting moral  disapproval of gays and lesbians and their intimate and family  relationships – precisely the kind of stereotype-based thinking and  animus the Equal Protection Clause is designed to guard against.  See  Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not  permissible bases for discriminatory treatment); see also Romer, 517  U.S. at 635 (rejecting rationale that law was supported by “the  liberties of landlords or employers who have personal or religious  objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433  (1984) (“Private biases may be outside the reach of the law, but the law  cannot, directly or indirectly, give them effect.”).Application to Second Circuit CasesAfter 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 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 Windsor and  Pedersen, now pending in the Southern District of New York and the  District of Connecticut.  I concur in this determination.Notwithstanding this determination, the President has informed me  that Section 3 will continue to be enforced by the Executive Branch.  To  that end, the President has instructed Executive agencies to continue  to comply with Section 3 of DOMA, consistent with the Executive’s  obligation to take care that the laws be faithfully executed, unless and  until Congress repeals Section 3 or the judicial branch renders a  definitive verdict against the law’s constitutionality.  This course of  action respects the actions of the prior Congress that enacted DOMA, and  it recognizes the judiciary as the final arbiter of the constitutional  claims raised.As you know, the Department has a longstanding practice of defending  the constitutionality of duly-enacted statutes if reasonable arguments  can be made in their defense, a practice that accords the respect  appropriately due to a coequal branch of government.  However, the  Department in the past has declined to defend statutes despite the  availability of professionally responsible arguments, in part because  the Department does not consider every plausible argument to be a  “reasonable” one.  “[D]ifferent cases can raise very different issues  with respect to statutes of doubtful constitutional validity,” and thus  there are “a variety of factors that bear on whether the Department will  defend the constitutionality of a statute.”  Letter to Hon. Orrin G.  Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).   This is the rare case where the proper course is to forgo the defense  of this statute.  Moreover, the Department has declined to defend a  statute “in cases in which it is manifest that the President has  concluded that the statute is unconstitutional,” as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).  In light of the foregoing, I will instruct the Department’s lawyers to  immediately inform the district courts in Windsor and Pedersen of the  Executive Branch’s view that heightened scrutiny is the appropriate  standard of review and that, consistent with that standard, Section 3 of  DOMA may not be constitutionally applied to same-sex couples whose  marriages are legally recognized under state law.  If asked by the  district courts in the Second Circuit for the position of the United  States in the event those courts determine that the applicable standard  is rational basis, the Department will state that, consistent with the  position it has taken in prior cases, a reasonable argument for Section  3’s constitutionality may be proffered under that permissive standard.   Our attorneys will also notify the courts of our interest in providing  Congress a full and fair opportunity to participate in the litigation in  those cases.  We will remain parties to the case and continue to  represent the interests of the United States throughout the 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.A motion to dismiss in the Windsor and Pedersen cases would be due on  March 11, 2011.  Please do not hesitate to contact us if you have any  questions.Sincerely yours, Eric H. Holder, Jr. Attorney General"},{"@context":"https:\/\/schema.org\/","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"name":"Obama to Dept. of Justice: DOMA is Unconstitutional","item":"https:\/\/equallywed.com\/obama-to-dept-of-justice-doma-is-unconstitutional\/#breadcrumbitem"}]}]