Holder and Obama Declare DOMA Unconstitutional

Posted by Bridgette

Breaking News!

Obama and Eric Holder Take Legislation into Their Own Hands and Circumvent Congress!

Attorney General Eric Holder

Attorney General Holder Will Not Uphold the Laws in our Country!

Department of Justice

Office of Public Affairs
Wednesday, February 23, 2011
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   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.



Holder’s Letter to Speaker John Boehner and Congress

Department of Justice
Office of Public Affairs
Wednesday, February 23, 2011
Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act

WASHINGTON – The Attorney General sent the following letter today to Congressional leadership to inform them of 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. A copy of the letter is also attached.

The Honorable John A. Boehner
U.S. House of Representatives
Washington, DC   20515

Re:   Defense of Marriage Act

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. § 7, i 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. § 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 2010, 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.ii

Continued at the following URL:




18 responses to “Holder and Obama Declare DOMA Unconstitutional

  1. Obama admin will no longer defend federal marriage act in court
    Feb. 23
    From NBC’s Pete Williams

    In a major reversal, the Obama administration has notified Congress that it will no longer defend the federal law that says marriage can exist only between a man and a woman.

    Attorney General Eric Holder says he has recommended, and the president has agreed, that the law unconstitutionally discriminates against same-sex couples who are legally married but whose status is not recognized by the federal government.

    “Given a number of factors, including a documented history of discrimination,” Holder wrote in a statement, the administration has concluded that classifications based on sexual orientation must be subject to a higher constitutional standard than ordinary laws. And the federal Defense of Marriage Act does not meet that test, he says.

    Here’s the immediate practical effect of this change:

    -The Defense of Marriage Act remains in effect unless a federal court strikes it down or Congress repeals it.

    -The government will stop defending the law in two court cases, in New York and Connecticut, where the law has been challenged, and in any other cases challenging the law.

    -If the law is to be defended, members of Congress would have to step up and join those lawsuits.

    In the statement, Holder argued that the legal landscape has changed since the Defense of Marriage Act was passed 15 years ago and signed into law by President Clinton. He mentioned the Supreme Court’s ruling striking down criminal laws against homosexuality, the repeal of the military’s Don’t Ask/Don’t Tell policy, and the fact that several lower courts have found the DOMA law unconstitutional.


  2. Obama declares DOMA unconstitutional, continues “evolving” on gay marriage
    By Greg Sargent- JournOlist Member
    February 23, 2011; 3:17 PM Snips

    As you’ve no doubt already heard, the Obama administration announced today that the President now views Section 3 of the Defense of Marriage Act as unconstitutional; the administration will stop defending it in court. That, of course, is the section holding that for federal purposes, marriage is defined as only between a man and a woman.

    Does this mean the president now favors gay marriage? At today’s press availiability, White House press secretary Jay Carney said he doesn’t:
    “I would refer you to just to his fairly recent statements on that. He is grappling with the issue. But he — again, I want to make the distinction between his personal views, which he has discussed, and the legal decision that was made today.”

    Obama recently said his position on the issue is “evolving,” so Carney’s quote appears to mean that it still is in that mode.

    That said, the President’s determination that Section 3 is unconstitutional is unquestionably a welcome act of leadership on his part.

    Obviously today’s statement from Carney suggests Obama doesn’t believe it’s politically safe enough (yet) to declare full support for gay marriage. But the overall dynamic is certainly encouraging. The arc of history is bending — albeit slowly — in the right direction.


  3. Defense of Marriage Act (DOMA): Legal Resources and Information

    DOMAwatch.org is designed to inform legislators and attorneys about current laws and litigation involving Defense of Marriage Acts.

    The Federal Defense of Marriage Act (DOMA) defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize a marriage from another state if it is between persons of the same sex. 37 states have their own Defense of Marriage Acts (DOMAs), while 2 more states have strong language that defines marriage as one man and one woman. There are 30 states that have constitutional amendments protecting traditional marriage, including the three states (Arizona, California, and Florida) that passed constitutional amendments in November 2008.


    Legal Analysis at this site has not been updated with this news yet.

  4. “Obama recently said his position on the issue is “evolving,” so Carney’s quote appears to mean that it still is in that mode.”
    So why is he bringing it up? Obama doesn’t yet have an opinion? This sounds more like he is just stirring up a fight by legislating law from the oval office, something he is good at doing. Its the Marxist way. So what should we be looking for that may be coming down the pike? On the other hand, if Obama’s position on the issue is still evolving , it could be that Obama is still searching for himself and not for the gay community at large.

  5. Is this any different than the Obama administration ignoring the ruling that Obamacare is unconstitutional, the Federal court decision re the moratorium on drilling in the Gulf, or his own ineligibility? If they don’t like it..they will ignore it. Lawlessness prevails in Washington, D.C.

    The Attorney General is to uphold the laws of the U.S. It is not his job to determine if a law is constitutional..that is up to the courts. Likewise, it is not Obama’s job to determine constitutionality of any law. That is not in his job description. It is not up to this dicktator and his minions to pick and choose which laws he will follow or dismiss. Laws are laws..and this is still supposed to be a country of laws!

  6. Memo to the White House: Don’t Stop, Start Defending DOMA
    February 15

    As Sherif Girgis, Robert P. George, and Ryan T. Anderson argue in the Harvard Journal of Law and Public Policy, “Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act—by the kind of activity that is by its nature fulfilled by the conception of a child.” Because of this “natural orientation to children,” they write, it is not surprising that “children fare best on virtually every indicator of well-being when reared by their wedded biological parents.” In writing DOMA, Congress took special note of this truth—and it did so with special authority, being the branch of government that, over time, has committed the most massive taxpayer resources to ameliorating the harms to children from being raised in homes with a missing parent—routinely the father.

    To defend traditional marriage for the sake of today’s and tomorrow’s children is not merely rational—it is irrational not to.


  7. Obama’s decision to stop defending DOMA definition of marriage in court infuriates social conservatives
    2/23/2011 Snips

    Just when you thought President Obama couldn’t tick off conservatives anymore than he already has, he goes and orders the Justice Department to stop defending the constitutionality of the federal definition of marriage — which defines marriage for federal purposes as solely a union between a man and a woman.

    “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,”

    Concerned Women for America (CWA) CEO Penny Nance called the decision the president’s “most shameful move yet” and an insult to a majority of Americans.

    “DOMA is the law of the land, whether he personally likes it or not. For him to circumvent the will of the American people, once again, to impose his latest personal fad into federal law is simply disgraceful,”
    Nance said. “Remember, just a few months ago he tried to sell the American public the idea that he supported the traditional definition of marriage, then a few weeks ago he said he ‘struggled’ with the idea, and now the mask finally comes off. He believes DOMA is unconstitutional and we are all supposed to go along with it.”

    Nance called on Congress to intervene and insist the Justice Department stay the previous course.

    “We simply cannot allow the Executive Branch in the person of the President or Attorney General to circumvent federal law purely on the basis of a president’s personal preference,
    ” she said.


  8. Bridgette:
    Check it out. SB 1308, Especially Articles I II & III. Was this Bill passed yesterday in Arizona?

  9. I thought I had added this. Sorry I couldnt add the link. Try this, if it doesn’t work Just GOOGLE SB 1308

  10. Does this Bill, 1308, protect Obama’s elligibility?

  11. Defense of Marriage Act, ObamaCare and Kagan
    February 23rd Snips

    President Obama’s decision today to abandon the Defense of Marriage Act (DOMA) is both outrageous—as a matter of Justice Department policy and constitutional law—and a miscalculation that will decreases the chances of ObamaCare being implemented, while potentially increasing calls for Supreme Court Justice Kagan to recuse herself from certain gay rights cases.

    The President’s refusal to defend DOMA, a federal statute enacted by overwhelming margins in the Senate (85 – 14) and House (342 – 67) and signed into law by President Clinton, flies in the face of Justice Department policy and principles of democratic government. It has long been the Department’s policy to defend any challenged federal statute unless no plausible argument can be made in its defense. By ignoring that policy, President Obama is engaging in a disturbing power grab that, if taken to its logical conclusion, would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.

    … In layman’s terms, that means that President Obama has decided that the Fourteenth Amendment’s Equal Protection Clause prohibits distinctions based on sexual orientation in the same way that it prohibits racial discrimination.

    only the judicial branch—particularly the Supreme Court—has the authority to determine the appropriate level of Fourteenth Amendment scrutiny and whether a particular piece of legislation meets that level of scrutiny.

    Apparently, President Obama has now taken that authority upon himself. And this from an Administration that was outraged that Congressmen were even discussing the proper interpretation of the Fourteenth Amendment provision dealing with birthright citizenship.

    This is not the first time that President Obama has shown he is willing to do an end run around the other branches of government in pursuit of his political agenda. His use of White House czars to circumvent the Senate confirmation process and of the EPA to circumvent legislative resistance to cap and trade should have forewarned us that he would attempt today’s end run around the judicial system.


    • Finally, even the President’s critics will concede that his conclusion about the proper level of constitutional scrutiny for sexual orientation—whether right or wrong—must have been based on legal research and analysis rather than just a sudden political whim.

      If so, Obama and Holder surely consulted the nation’s Solicitor General—the government’s top constitutional attorney—when conducting this important legal analysis. As a result, the Administration will be called upon to disclose whether Elena Kagan was still Solicitor General when this consultation began.

      If the answer is yes and Kagan was involved in determining the federal government’s official position on the proper scrutiny for sexual orientation, it opens up an ethical can of worms for her concerning Supreme Court cases in which that standard is at issue. It’s a can of worms that Obama may come to regret.

  12. I love coincidences, don’t you?

    Tears and cheers as Abercrombie signs bill
    01:30 a.m. HST, Feb 24, 2011

    Fifty supporters applauded and shouted in joy at the Queen Kapiolani Hotel after witnessing the governor, via live Internet feed, sign the landmark civil unions bill into law yesterday afternoon. Many jumped to their feet and cheered. Some hugged. Others brushed away tears.

    “We’re finally accepted and recognized,” said Clayton Logue, 50, who flew from Maui to witness history. He and his partner, who were joined in an Episcopal ceremony, will wait to see how the new law will affect their benefits before deciding whether to enter into a civil union.

    Louise Esselstyn, 66, and her partner of 19 years, Robie Lovinger, 57, are among six couples who sued the state in Circuit Court after then-Gov. Linda Lingle vetoed a similar civil unions bill last year. “We are shining on this day,” Lovinger said. “It’s not just for gays or lesbians, but for all of us in Hawaii. … The fabric of society is strengthened when we stand together on the side of equality.” Lovinger left a federal job for a state job to obtain reciprocal benefits to provide for Esselstyn, who has multiple sclerosis and cannot work. She said medical benefits are crucial and expects added benefits under the civil unions law.

  13. Oh, Make our Day!

    Newt Gingrich: Obama Could Be Impeached Over Gay Marriage Reversal
    February 25, 2011

    Former House Speaker Newt Gingrich, who plans within two weeks to announce if he will run for president, said today that
    if President Obama doesn’t change his mind and order his Justice Department to enforce the Defense of Marriage Act, Republicans in Congress should strike back and even consider impeachment proceedings.

    “I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job,“said Gingrich. “His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”

    He didn’t call for immediate impeachment hearings, but didn’t rule them out if Obama balks at any congressional demands to enforce the law.


  14. KUHNER: Obama’s homosexual America
    President champions the culture of death
    February 24, 2011 Snips

    DOMA stipulates that states have the power to not recognize same-sex marriages conducted in other states. Hence, the purpose of DOMA is to act as a firewall against the most revolutionary social-engineering experiment of our time: redefining marriage.

    Although he claims still to be “grappling” with the issue of same-sex marriage, the president is a radical social liberal. He supports “strong” civil unions for homosexuals. He claims that restrictions on homosexuals getting married are “discriminatory” and “homophobic.” He endorses abortion on demand – including the barbaric practice of partial-birth abortion. He defends embryonic stem-cell research. He has nothing but kind things to say about euthanasia. In short, he champions the culture of death.

    Mr. Obama‘s stated goal is to transform America. The most destructive aspect is this revolution against traditional morality.


  15. Social Conservatives Vow Fight for Defense of Marriage Act
    GOP Weighs Legal Steps, New Budget Cuts After Justice Dept. Drops DOMA Defense

    Feb. 25, 2011

    In the immediate aftermath of President Obama’s decision this week to stop defending the constitutionality of the Defense of Marriage Act, many Republicans offered a muted reaction that has some wondering whether conservative opposition to same-sex marriage has waned. But several of the party’s high-profile social conservatives are vowing to make a robust effort on behalf of the law.

    “There are some options available to us legislatively that we’re looking at,” said House Majority Leader Eric Cantor during an address at Harvard University’s Kennedy School of Government Thursday. He did not offer details.

    A House GOP aide familiar with the discussions said congressional lawyers were grappling with how to proceed in uncharted legal territory.

    “Because Congress as an institution has lost its counsel to defend its law,” the aide said, “Congress as an institution may have to step in and say ‘we will defend our own law.’ But there’s little precedent for that.” Another alternative being considered, the aide said, is allowing an outside interest group to stand in for Justice Department lawyers and continue to carry the cases through the court system.

    “We have the authority to do a few things,” said Iowa Rep. Steve King, who sits on the House Judiciary Committee, in an interview. “One is to begin to reduce the Justice Department’s budget. The resources that they would be using to defend the DOMA law in court are not necessary to appropriate to them.” King said he plans to introduce an amendment to the 2012 appropriations bill to “send them a message.”


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