Section 3 of the Defense of Marriage Act states:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife
Today, the Attorney General of the United States has announced
that he will no longer defend the constitutionality of this statute:
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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.
Here's what you need to understand: under equal protection law, statutes which are alleged to be discriminatory get decided under one of four standards:
- Strict Scrutiny: statutes discriminating on a suspect classification like race must be justified by a compelling governmental interest, be narrowly tailored to meet that interest and the discrimination in question must be the least restrictive means of fulfilling that compelling interest. Most statutes fail to meet this test, but, for instance, narrowly-tailored affirmative action programs can survive.
- Intermediate scrutiny: the statute must further an important/"exceedingly persuasive" governmental interest in a way that is substantially related to that interest. Usually used for evaluating gender-based discrimination, as in the VMI case.
- Rational Basis-plus: a statute seemingly motivated by animus against a politically unpopular group basically fails.
- Rational basis: If there's nothing deemed particularly special about the classification, the law must merely be a reasonable means to an end that may be legitimately pursued by the government. It's the deferential default standard of review.
Today, essentially, the Attorney General says that statutes discriminating against gays move from the bottom category to somewhere in the middle two groups, and that DOMA's restrictive definition of marriage did not have sufficient non-animus-based justification to survive such scrutiny.
So what happens to cases going forward? Holder's statement explains:
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.
Look: Congress or some other parties will step in and defend DOMA, and some courts
could agree with their arguments. And the Administration will still enforce the law until it's repealed (including the Full Faith and Credit part, which the Administration will continue to defend) -- which is a curious interpretation of the Take Care clause I need to evaluate. But this is a major step towards the eradication of laws which discriminate on the basis of sexual orientation, and I applaud the Administration's steps forward today.
(See TomP's diary for additional discussion.)
Updated by Adam B at Wed Feb 23, 2011, 12:57:29 PM
Here's the DOJ letter to Congress, which explains in greater legal detail the basis for this decision:
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.” 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....
