Brody's Notes... President Obama Tells Department Of Justice to Quit Defence of DOMA

By Brody Levesque (Washington DC) FEB 23 | In a stunning announcement made just after noon today, the Attorney General of the United States, Eric Holder, announced that by direction of President Barack Obama, the United States would no longer pursue defending the anti-gay 'Defence Of Marriage Act' in federal court actions now pending.

In his statement the Attorney General 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. 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.

U. S. Attorney General Eric Holder

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.

The Justice Department has also confirmed that a 530d letter has been sent to the Congress informing its members that, if it wants to defend the statute, it is free to do so.

The Attorney General said the administration's legal team had decided that Gay people merited the protection of the “heightened scrutiny” test, and that under that standard, the Defence of Marriage Act was impossible to keep defending as constitutional.
The new position will require the Justice Department to file new briefs in the pending litigation, including another related major case now pending before the United States Court of Appeals for the First Circuit of Appeals, in Boston, Massachusetts.

White House Press Secretary Jay Caney said the president doesn't believe the law is constitutional, thought his own personal view on gay marriage is still evolving.

"He's grappling with the issue," Carney said this afternoon. "But I want to make a distinction between his personal views and the legal decision not to defend the law."

House Speaker John Boehner, (R-OH), released a statement indicating that it's not the appropriate time to nix DOMA's Defence:

"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.