The Justice Department on Wednesday announced it will no longer defend the controversial Defense of Marriage Act in two court cases.
In a statement, U.S. Attorney General Eric Holder said Obama that based on a number of factors, including “a documented history of discrimination,” that classifications based on sexual orientation should be subject to a more heightened scrutiny in court.
“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,” Holder said. “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.”
The Obama administration made the decision as it faced two new pending cases against DOMA — Pedersen v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders, and Windsor v. United States, which was filed by the American Civil Liberties Union. The administration had deadline of March 11 to respond to the lawsuits.
But in the Second Circuit, where the cases are pending, there is no precedent for how laws concerning sexual orientation should be treated. The situation opened the door for the president to drop defense of DOMA.
LGBT rights groups quickly praised the decision. Many of them were critical on the president to discontinue his defense of DOMA in previous cases.
“The administration today acknowledges that there is no legitimate reason for this discrimination and therefore it cannot be defended under the Constitution,” said Evan Wolfson, president of Freedom to Marry. “This a momentous step forward toward Freedom to Marry’s goal of ending federal marriage discrimination and fully protecting all loving and committed couples.”
But Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, said in an e-mail blast to followers that the decision from the Obama administration amounted to “a constitutional outrage.”
“Why do we even have courts if the President himself gets to decide which laws are constitutional?” he said.
R. Clarke Cooper, executive director of the National Log Cabin Republicans, criticized the administration for continuing its defense of “Don’t Ask, Don’t Tell” in court as it ceased to defend DOMA.
“This is just one more example of the Obama administration talking out of both sides of its mouth when it comes to equality for all Americans,” Cooper said. “Today Log Cabin Republicans call upon the Department of Justice to also admit that ‘Don’t Ask, Don’t Tell’ is indefensible.”
The Justice Department reported its decision to Congress; it’s now possible that anti-LGBT members of Congress could take up defending DOMA.
Still, Republican leadership in the U.S. House expressed displeasure over the decision. Michael Steel, a spokesperson for House Speaker John Boehner (R-Ohio) criticized the timing of the announcement.
“While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,” he said.
In a statement, House Minority Leader Nancy Pelosi (D-Calif.) called the decision from the Obama administration “a victory for civil rights, fairness, and equality for the LGBT community and all Americans.”
“Since its inception, the discriminatory Defense of Marriage Act has long been viewed as a violation of the equal protection clause of the Constitution,” she said. “Today, the president made clear that he agrees – and I commend him for taking this bold step forward to ensure the federal government is no longer in the business of defending an indefensible statute.”
DOMA, passed in 1996, defines marriage as between a man and woman and allows states to refuse to recognize same-sex marriages performed in other jurisdiction. The federal law denies more than 1,000 benefits of marriage to gay and lesbian couples.