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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.
This one's big, folks. It certainly means DOMA itself and the question of state gay marriage bans will go before the Supreme Court and relatively soon. I'll keep an eye on this one.
[UPDATE] Usual suspects are pissed off across the board. Col. Mustard calls it a "massive power grab" (wonder what he thinks about the Patriot Act then), but the best reaction is from National Review's Shannen Coffin.
What puzzles me, however, is White House press secretary’s Jay Carney’s suggestion at today’s presser that President Obama is still “grappling” with the gay-marriage issue. If today’s letter from the attorney general to Congress is any indication, the administration has now fully committed to the idea that it is unconstitutional to deny marriage benefits to homosexuals. According to the letter, it is the administration’s position that discrimination against homosexuals is subject to strict scrutiny under the Equal Protection Clause and that all sorts of proffered rationales not borne out by “modern social science” — such as the procreative function of marriage — are categorically unreasonable or simply moral bigotry.
Anyone who thinks that the "procreative function of marriage" is the best argument against gay marriage and that Eric Holder and the DoJ should pursue that avenue of attack shouldn't be allowed anywhere near, say, couples infertility counseling or an adoption agency.
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