Updated at 6:52 p.m. on February 23.
CORRECTION: The original version of this report had an incorrect year for DOMA's signing by President Clinton.
President Obama now believes that the Defense of Marriage Act is unconstitutional and will no longer defend the 15-year-old law in federal court, the Justice Department announced Wednesday.
Symbolically and substantively, his decision represents a major advance for gay rights and presages a significant shift in how the government will handle questions about equality for gays. It could also reignite a largely burnt-over debate in the culture wars, distracting both political parties.
In a statement, Attorney General Eric Holder said, “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.”
This means that the administration will withdraw its defense of ongoing suits in two federal Appeals Courts and will leave it to Congress to defend the law, known as DOMA, against those challenges. It will remain a party to the lawsuits as the law itself remains in effect.
DOMA, signed by President Clinton in 1996, allows states not to recognize same-sex marriages preformed in other states and provides a federal definition for “marriage” that excludes same-sex couples.
Wednesday’s decision, combined with the president’s role this December in pushing Congress to repeal the “don’t ask, don’t tell” policy for openly gay men and women serving in the military, suggests that the administration does not believe that the potential downside in raising a banner on a major culture issue justifies their inattention to it.
A majority of Americans oppose gay marriage but support civil unions and extending federal benefits to gays. But large majorities of Americans want the executive and legislative branches to focus on jobs and the economy, which means that Congressional Republicans may have to modulate the way they move forward.
Obama has opposed DOMA but justified his administration’s defense of the law by saying that it was important to defend existing statutes. Still, the Justice Department, in legal filings, had gone out of its way to avoid taking a stand on whether the law was constitutional precisely because the president’s views were evolving.
Holder said that Obama concluded that Section 3 of DOMA, which defines “spouse” as a member of the opposite sex, “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.”
A spokesperson for the Human Rights Campaign, the largest gay-rights advocacy group, said it was notified just after 11 a.m. Wednesday.
“This is a monumental decision for the thousands of same-sex couples and their families who want nothing more than the same rights and dignity afforded to other married couples,” said HRC President Joe Solmonese. “As the president has stated previously, DOMA unfairly discriminates against Americans and we applaud him for fulfilling his oath to defend critical constitutional principles.”
The announcement by the Justice Department came just minutes before White House press secretary Jay Carney’s regular briefing. Carney took care to press upon reporters that the president’s personal view about DOMA—that it is unfair to gays and lesbians—is distinct from the decision. The announcement from the administration came because of a court-imposed deadline from the 2nd Circuit.
Carney also said that the U.S. government will still be a party to these cases to allow the courts to make a recommendation about constitutionality and to allow other interested parties, such as Congress, to defend the law if they wish.
“We recognize and respect that there are other points of view,” Carney said.
Last May, a federal judge in Massachusetts ruled Section 3 unconstitutional because it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.
The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.
Relations between the president and gay-rights activists have been strained in large part because of Obama’s refusal to order the Justice Department to abandon its defense of DOMA. At the same time, he’s enjoyed high approval ratings among gays in general.
Conservatives sought to portray Obama’s policy shift as a craven political flip-flop and as a portrayal of his responsibilities as an executive. “[U]nilaterally declaring homosexuals a protected class under our Constitution” suggests that Democrats are “are responding to their election loss with a series of extraordinary, extra-constitutional end runs around democracy,” said Brian Brown, the president of the National Organization for Marriage, which runs anti-gay marriage ballot-initiative campaigns.
“On the other hand,” noted Maggie Gallagher, a long-time gay-rights opponent, “The Obama administration was throwing this case in court anyway. The good news is this now clears the way for the House to intervene and to get lawyers in the court room who actually want to defend the law, and not please their powerful political special interests.”
Gallagher was referring to the likelihood that the House of Representatives will instruct its judiciary committee to take over the defense of the lawsuits.
But even outside the margins of legal documents, the administration has hinted that its own legal strategy was evolving. According to an administration official, Robert Bauer has been reviewing the legal landscape since he became White House counsel in 2010. As the Justice Department noted Wednesday, in the 15 years since Congress passed the act, the Supreme Court has invalidated laws criminalizing gay sex, lower courts have ruled DOMA unconstitutional, and Congress agreed to abolish the ban on gays serving openly in the military.
The announcement Wednesday does not overturn the law. That would take an act of Congress or a final finding by the judicial branch, probably the Supreme Court. But it changes the vector of the legal cases considerably. Privately, the administration believes that five justices of the court, including Justice Anthony Kennedy, often the court’s swing vote, would find parts or most of DOMA invalid if the federal government withdrew its arguments in defense of it.
To those observers who believe that the Supreme Court takes public opinion into account when rendering judgments, DOMA’s Section 3 has been seen as the most vulnerable, in part because its overturning would not require a state like Arkansas to accept a marriage of two men performed in Washington, D.C. Should the Court throw out Section 3, it would require the federal government to provide married gay couples with the hundreds of benefits, including tax deductions, that federal law grants to married heterosexuals.
Rebecca Kaplan contributed