National
Can Obama stop enforcing DOMA?
Experts divided as legal challenges loom
President Obama (Blade photo by Michael Key)
The announcement from President Obama last week that he believes Section 3 of the Defense of Marriage Act is unconstitutional and that he will no longer defend the law in court is raising questions about whether he can further help the LGBT community by discontinuing enforcement of the law.
Dan Pinello, who’s gay and a government professor at the City University of New York, said he believes Obama has the authority to stop enforcing Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages, now that he has deemed the statute unconstitutional.
“If an order came down from the White House to start treating married same-sex couples like married opposite-sex couples, I think that would be honored in terms of bureaucrats sitting up and doing what he says,” Pinello said. “A president can seek not to enforce a statute if he believes, legally and otherwise, it’s unconstitutional.”
In the past, presidents have declined to enforce laws that they believe are unconstitutional, but such situations are rare. President Woodrow Wilson ignored a statute that conditioned removal of postmasters on Senate approval. In 1926, the Supreme Court struck down the the law as unconstitutional without making any suggestion that Wilson overstepped his boundaries by not enforcing the statute.
In 1994, then-U.S. Assistant Attorney General Walter Dellinger wrote a memorandum to then-White House Counsel Abner Mikva asserting the president “may appropriately decline to enforce a statute that he views as unconstitutional.”
“As a general matter, if the President believes that the [Supreme] Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue,” Dellinger writes. “If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.”
But the memorandum examines whether a president can decline to enforce a statute in terms of whether the president has authority not to uphold a law recently approved by Congress. Dellinger states that if Congress is making progress toward passing a law that the president believes is unconstitutional, the White House should “promptly identify unconstitutional provisions and communicate its concerns to Congress.”
Such a situation would be different from what happened with DOMA, when the president determined the statute was unconstitutional nearly 15 years after a Republican Congress passed the bill and then-President Clinton signed it into law.
Jon Davidson, legal director for Lambda Legal, said there is “significant dispute” over whether a president can unilaterally decline to enforce a statute.
“When a president simply refuses to enforce the law, it’s not always clear that there is anyone who would have the legal ability to sue to require him to do so,” Davidson said. “This ability to exercise unilateral authority is troubling to many scholars.”
Still, Davidson noted that precedent exists for presidents to decline to enforce particular laws. For 25 years following its enactment in 1968, he said, every president refused to enforce a law seeking to make the Miranda case inapplicable to federal prosecutions until the courts struck down the law. Similarly, Davidson said numerous presidents refused to abide by laws allowing for legislative vetoes of presidential action, such as the 1973 War Powers Resolution.
For its part, the Obama administration seems intent on maintaining enforcement of DOMA even though the president has deemed it unconstitutional. In the case of Golinski v. U.S. Office of Personnel Management — concerning U.S. Ninth Circuit Chief Judge Alex Kozinski’s order to give court employee Karen Golinski benefits for her same-sex spouse — the Obama administration reiterates that it plans to continue enforcement of DOMA.
Kozinski ordered the U.S. government to answer questions about its continued refusal to offer Golinski federal benefits in light of its decision that DOMA is unconstitutional. On Monday, the Justice Department responded to Kozinski by saying that Obama is obligated to continue to enforce the law until either Congress repeals the statute or the courts strike it down.
“The President has determined that Executive agencies will continue to enforce Section 3 of DOMA, a course of action that accords appropriate deference to the Congress that enacted DOMA and allows the judiciary to be the final arbiter of DOMA’s constitutionality, as stated by the Attorney General,” the Justice Department states. “Moreover, as discussed, the Executive Branch has fulfilled its statutory obligation to notify Congress of the decision not to defend the statute and is committed to urging the courts to provide Congress with a full and fair opportunity to participate in the litigation of DOMA cases.”
Shin Inouye, a White House spokesperson, said Obama plans to continue to enforce DOMA even though he’s decided no longer to enforce the statute in court.
“Consistent with past practice when a president determines and announces publicly that a law is unconstitutional, the president has directed the Department of Justice to cease defending the law in court,” Inouye said. “Until there is a final determination by the courts of the law’s validity or it is repealed by Congress, however, it remains the law of the land and the president will continue to enforce it as such.”
Many legal experts who are LGBT advocates are wary of the prospects of the president declining to enforce a statute — even one as harmful to married same-sex couples as DOMA — simply on the basis that Obama deems the law unconstitutional.
Nan Hunter, a lesbian law professor at Georgetown University, said no one believes more strongly than she that DOMA is unconstitutional, but cautioned against having the president stopping to enforce DOMA because “you have to look beyond your nose when you’re thinking about the ramifications of these sorts of decisions.”
“We do not want to live in a country in which the president can declare statutes to be unconstitutional because he doesn’t like them,” Hunter said. “That’s really not a place where any of us should want to live.”
To support the idea of a president ceasing to enforce a statute because the administration believes it’s unconstitutional, Hunter said she wants to see a guiding set of principles that would allow Obama to stop enforcing the statute while being consistent with the rule of law.
“I think everyone agrees that the criteria would have to be extremely limited so that such a situation would be extremely rare,” Hunter said. “Maybe someone could persuade that this fits into that very limited criteria, but I just haven’t heard any.”
Richard Socarides, president of the media watchdog group Equality Matters, said given the history of DOMA, the Obama administration would be “hard pressed” to decide unilaterally to stop enforcing DOMA.
“I just think it would be disruptive to the normal order of things,” Socarides said. “I’m sure that their lawyers made pretty convincing arguments that the more orderly way to do this was to await a definitive ruling from the court, which should be fairly quickly forthcoming based upon the government’s new position.”
Amid this debate, another LGBT advocate is drawing on the recent change in how the Obama administration is handling DOMA to press the administration to exercise prosecutorial discretion in cases involving bi-national same-sex couples.
Lavi Soloway, an attorney with Masliah & Soloway PC in New York, is representing three married, same-sex bi-national couples in New York, New Jersey and California who are facing deportation proceedings.
Alex Benshimol and Doug Gentry are scheduled for a July 13 hearing in San Francisco; Monica Alcota and Cristina Ojeda are scheduled for a March 22 hearing in New York; and Henry Velandia and Josh Vandiver scheduled for a May 6 hearing in Newark, N.J. Each of the American spouses in these cases has filed green card petitions on behalf of their foreign national partners, although DOMA prevents American nationals from sponsoring their partners.
“We intend to argue as a result of the shifting position of the executive branch with respect to DOMA that it’s appropriate for the immigration judges and also for the attorneys that represent the Department of Homeland Security to exercise what’s called prosecutorial discretion, which simply means exercising more discretion in how to proceed with these cases,” Soloway said.
In the three pending cases, Soloway is asking for judges to consider changes that were made to how the Obama administration is handling DOMA in court and to put off deportation proceedings until another time when different relief of legal options may be available. According to Soloway, if anyone in these cases is deported, they won’t be able to return to the United States for another 10 years, even if DOMA is repealed or overturned sometime before then.
“I’m calling on the Department of Homeland Security … to develop reasonable innovative policy to deal with the particular moment that we’re in,” Soloway said. “We’re just in a very short-term moment where things are in a state of flux. I’m not asking them to stop enforcing any law; this is part of enforcing the law.”
State Department
Rubio mum on Hungary’s Pride ban
Lawmakers on April 30 urged secretary of state to condemn anti-LGBTQ bill, constitutional amendment
More than 20 members of Congress have urged Secretary of State Marco Rubio to publicly condemn a Hungarian law that bans Pride events.
California Congressman Mark Takano, a Democrat who co-chairs the Congressional Equality Caucus, and U.S. Rep. Bill Keating (D-Mass.), who is the ranking member on the House Foreign Affairs Committee’s Europe Subcommittee, spearheaded the letter that lawmakers sent to Rubio on April 30.
Hungarian lawmakers in March passed a bill that bans Pride events and allow authorities to use facial recognition technology to identify those who participate in them. MPs last month amended the Hungarian constitution to ban public LGBTQ events.
“As a NATO ally which hosts U.S. service members, we expect the Hungarian government to abide by certain values which underpin the historic U.S.-Hungary bilateral relationship,” reads the letter. “Unfortunately, this new legislation and constitutional amendment disproportionately and arbitrarily target sexual and gender minorities.”
Prime Minister Viktor Orbán’s government over the last decade has moved to curtail LGBTQ and intersex rights in Hungary.
A law that bans legal recognition of transgender and intersex people took effect in 2020. Hungarian MPs that year also effectively banned same-sex couples from adopting children and defined marriage in the constitution as between a man and a woman.
An anti-LGBTQ propaganda law took effect in 2021. The European Commission sued Hungary, which is a member of the European Union, over it.
MPs in 2023 approved the “snitch on your gay neighbor” bill that would have allowed Hungarians to anonymously report same-sex couples who are raising children. The Budapest Metropolitan Government Office in 2023 fined Lira Konyv, the country’s second-largest bookstore chain, 12 million forints ($33,733.67), for selling copies of British author Alice Oseman’s “Heartstopper.”
Former U.S. Ambassador to Hungary David Pressman, who is gay, participated in the Budapest Pride march in 2024 and 2023. Pressman was also a vocal critic of Hungary’s anti-LGBTQ crackdown.
“Along with years of democratic backsliding in Hungary, it flies in the face of those values and the passage of this legislation deserves quick and decisive criticism and action in response by the Department of State,” reads the letter, referring to the Pride ban and constitutional amendment against public LGBTQ events. “Therefore, we strongly urge you to publicly condemn this legislation and constitutional change which targets the LGBTQ community and undermines the rights of Hungarians to freedom of expression and peaceful assembly.”
U.S. Reps. Pramila Jayapal (D-Wash.), Sarah McBride (D-Del.), Jim Costa (D-Calif.), James McGovern (D-Mass.), Gerry Connolly (D-Va.), Summer Lee (D-Pa.), Joaquin Castro (D-Texas), Julie Johnson (D-Texas), Ami Bera (D-Calif.), Mark Pocan (D-Wis.), Lloyd Doggett (D-Texas), Becca Balint (D-Vt.), Gabe Amo (D-R.I.), Ted Lieu (D-Calif.), Robert Garcia (D-Calif.), Dina Titus (D-Nev.), Raja Krishnamoorthi (D-Ill.), Jan Schakowsky (D-Ill.) and Mike Quigley (D-Ill.) and Del. Eleanor Holmes Norton (D-D.C.) signed the letter alongside Takano and Keating.
A State Department spokesperson on Wednesday declined to comment.
Federal Government
HRC memo details threats to LGBTQ community in Trump budget
‘It’s a direct attack on LGBTQ+ lives’
A memo issued Monday by the Human Rights Campaign details threats to LGBTQ people from the “skinny” budget proposal issued by President Donald Trump on May 2.
HRC estimates the total cost of “funding cuts, program eliminations, and policy changes” impacting the community will exceed approximately $2.6 billion.
Matthew Rose, the organization’s senior public policy advocate, said in a statement that “This budget is more than cuts on a page—it’s a direct attack on LGBTQ+ lives.”
“Trump is taking away life-saving healthcare, support for LGBTQ-owned businesses, protections against hate crimes, and even housing help for people living with HIV,” he said. “Stripping away more than $2 billion in support sends one clear message: we don’t matter. But we’ve fought back before, and we’ll do it again—we’re not going anywhere.”
Proposed rollbacks or changes at the U.S. Department of Health and Human Services will target the Ryan White HIV/AIDS Program, other programs related to STI prevention, viral hepatitis, and HIV, initiatives housed under the Substance Abuse and Mental Health Services Administration, and research by the National Institutes of Health and Agency for Healthcare Research and Quality.
Other agencies whose work on behalf of LGBTQ populations would be jeopardized or eliminated under Trump’s budget include the U.S. Department of Housing and Urban Development, the U.S. Department of Justice, the U.S. Small Business Administration, and the U.S. Department of Education.
U.S. Supreme Court
Supreme Court allows Trump admin to enforce trans military ban
Litigation challenging the policy continues in the 9th Circuit
The U.S. Supreme Court on Tuesday allowed the Trump-Vance administration to enforce a ban on transgender personnel serving in the U.S. Armed Forces pending the outcome of litigation challenging the policy.
The brief order staying a March 27 preliminary injunction issued by the U.S. District Court for the Western District of Washington notes the dissents from liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
On the first day of his second term, President Donald Trump issued an executive order requiring Secretary of Defense Pete Hegseth to effectuate a ban against transgender individuals, going further than efforts under his first administration — which did not target those currently serving.
The DoD’s Feb. 26 ban argued that “the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.”
The case challenging the Pentagon’s policy is currently on appeal before the U.S. Court of Appeals for the Ninth Circuit. The lead plaintiff is U.S. Navy Commander Emily Shilling, who is joined in the litigation by other current transgender members of the armed forces, one transgender person who would like to join, and a nonprofit whose members either are transgender troops or would like to be.
Lambda Legal and the Human Rights Campaign Foundation, both representing the plaintiffs, issued a statement Tuesday in response to the Supreme Court’s decision:
“Today’s Supreme Court ruling is a devastating blow to transgender servicemembers who have demonstrated their capabilities and commitment to our nation’s defense.
“By allowing this discriminatory ban to take effect while our challenge continues, the Court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice.
“Transgender individuals meet the same standards and demonstrate the same values as all who serve. We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down.”
U.S. Solicitor General D. John Sauer noted that courts must show “substantial deference” to DoD decision making on military issues.
“The Supreme Court’s decision to allow the military ban to go into effect is devastating for the thousands of qualified transgender servicemembers who have met the standards and are serving honorably, putting their lives on the line for their country every single day,” said GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi. “Today’s decision only adds to the chaos and destruction caused by this administration. It’s not the end of the case, but the havoc it will wreak is devastating and irreparable. History will confirm the weight of the injustice done today.”
“The Court has upended the lives of thousands of servicemembers without even the decency of explaining why,” said NCLR Legal Director Shannon Minter. “As a result of this decision, reached without benefit of full briefing or argument, brave troops who have dedicated their lives to the service of our country will be targeted and forced into harsh administrative separation process usually reserved for misconduct. They have proven themselves time and time again and met the same standards as every other soldier, deploying in critical positions around the globe. This is a deeply sad day for our country.”
Levi and Minter are the lead attorneys in the first two transgender military ban cases to be heard in federal court, Talbott v. Trump and Ireland v. Hegseth.
U.S. Rep. Mark Takano (D-Calif.) issued a statement on behalf of the Congressional Equality Caucus, where he serves as chair.
“By lifting the lower court’s preliminary injunction and allowing Trump to enforce his trans troop ban as litigation continues, the Supreme Court is causing real harm to brave Americans who simply want to serve their nation in uniform.
“The difference between Donald Trump, a draft dodger, and the countless brave Americans serving their country who just happen to be trans couldn’t be starker. Let me be clear: Trump’s ban isn’t going to make our country safer—it will needlessly create gaps in critical chains of military command and actively undermine our national security.
“The Supreme Court was absolutely wrong to allow this ban to take effect. I hope that lower courts move swiftly so this ban can ultimately be struck down.”
SPARTA Pride also issued a statement:
“The Roberts Court’s decision staying the preliminary injunction will allow the Trump purge of transgender service members from the military to proceed.
“Transgender Americans have served openly, honorably, and effectively in the U.S. Armed Forces for nearly a decade. Thousands of transgender troops are currently serving, and are fully qualified for the positions in which they serve.
“Every court up to now has found that this order is unconstitutional. Nevertheless, the Roberts Court – without hearing any evidence or argument – decided to allow it to go forward. So while the case continues to be argued, thousands of trans troops will be purged from the Armed Forces.
“They will lose their jobs. They will lose their commands, their promotions, their training, pay and benefits, and time. Their units will lose key players; the mission will be disrupted. This is the very definition of irreparable harm.”
Imara Jones, CEO of TransLash Media, issued the following statement:
“The Supreme Court’s decision to uphold Trump’s ban on transgender soldiers in the military, even as the judicial process works its way through the overall question of service, signals that open discrimination against trans people is fair game across American society.
“It will allow the Trump Administration to further advance its larger goal of pushing trans people from mainstream society by discharging transgender military members who are currently serving their country, even at a time when the military has struggled recently to meet its recruiting goals.
“But even more than this, all of my reporting tells me that this is a further slide down the mountain towards authoritarianism. The hard truth is that governments with authoritarian ambitions have to separate citizens between who is worthy of protection and who’s not. Trans people are clearly in the later category. And this separation justifies the authoritarian quest for more and more power. This appears to be what we are witnessing here and targeting trans people in the military is just a means to an end.”
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