Wednesday, February 23, 2011

BREAKING: Obama administration renounces DoMA defense!

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Same-sex marriage

I could barely believe it when I first saw Glenn Greenwald praise it on Twitter, but it’s true: The Department of Justice has officially stated that they will no longer be defending the Clinton-era Defense of Marriage Act (DoMA) in courts against same-sex marriage [formatting is [sic]]:

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. […]

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.


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 Congress has repealed the military’s Don’t Ask, Don’t Tell policy.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.

Now, before we get carried away, it’s important to understand what this means, and what it doesn’t. What’s happened is that the federal government will no longer be arguing in defense of Section 3 of DoMA, which is what defines ‘marriage’ and ‘spouse’ according to heteronormative standards and therefore prohibits the marriage of same-sex couples under federal law. But while the Obama administration’s legal arm will no longer be touting the constitutionality of the same-sex marriage ban in courts, the law itself has not actually been struck down, as the AG has left this task to Congress.

It also doesn’t mean that there will now be gay marriage on a federal level, such as in Canada (one of the reasons why I still prefer residing in my home country rather than the one I blog so exclusively about). The major federal obstacle has been removed, but it’s still up to state and federal courts to decide how individual gay marriage litigation proceeds; courts can still certainly rule against it. But the government’s denial of its own anti-gay marriage law will certainly provide a compelling example to follow, and one less stick to be thrown in the wheels of same-sex couples and marriage equality proponents in general.

So, all in all, this doesn’t mean that gays can now marry across the country. That pleasant fiction is still far from reality at the moment. But there will be one less major opponent for them to deal with on the road to legislated nationwide marriage equality, which is still something we can all be happy about.

Really, it’s just about goddamned time President Obama took any sort of stance in favor of same-sex marriage. And it’s very much welcome. He really should think about doing it more often.

(via @ggreenwald)