DOJ will no longer defend “unconstitutional” DOMA anti gay marriage law in court

Calling parts of the Defense of Marriage Act (DOMA) unconstitutional, U.S. Attorney General Eric Holder said in a press release on Wednesday that the Department of Justice would no longer defend the legislation in court.

The announcement moves marriage equality for gay couples and lesbian couples one step closer towards reality. 

The decision means that although the law would remain in effect until either repealed by Congress or struck down by the U.S. Supreme Court, litigants outside of the Justice Department would have to actively defend the law in lawsuits if they wish the cases to be pursued.    

This announcement comes specifically in regard to two current court cases involving the law, Pedersen v. OPM and Windsor v. United States, however, the administration’s decision also applies to future cases as well.

Holder stated that though the law would still be enforced by the Executive Branch, arguments for the constitutionality of the law in court would not be conducted. 

In the statement, Holder remarked, 

“While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard…. 

“…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.”

According to Holder, several legal and legislative changes over the past 15 years since the initial enactment of DOMA helped to determine the administration’s decision including the Supreme Court ruling that laws criminalizing homosexual conduct are unconstitutional,  Congress’ repeal the military’s ‘Don’t Ask, Don’t Tell’ policy, and the ruling of several lower courts that DOMA is unconstitutional.