In a shocking about face, the Obama administration announced Wednesday morning that it believes Section 3 of the 1996 Defense of Marriage Act (DOMA) to be unconstitutional and has ordered the Justice Department to stop defending the law.
Section 3 is the specific clause that prohibits the federal government from recognizing same-sex marriages. In a press release announcing the change, U.S. Attorney General Eric Holder further argues that laws regarding sexual orientation should be subject to a higher level of review:
Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.
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.
As recently as last October, the Obama administration announced its intention to stand behind DOMA and in January of this year filed a brief arguing that “DOMA is rationally related to legitimate governmental interests.”
Once again, the president demonstrates a weakness that his plagued his stewardship almost since his first day in office—namely, taking a firm, immutable stance with respect to a topic on which there is sharp political division. In this case, his decision (if in fact it is final!) could prove costly. A Gallup poll from last May shows 53% of Americans opposing same-sex marriage while 44% favor it. The president has also initiated yet another battle between the federal government and the states, 35 of which currently have laws on the books prohibiting same-sex marriage.
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Comments
Hi,
So wouldn't a Libertarian viewpoint be that this is a good thing? BTW, he didn't 'strike it down', he's ignoring it. As a Libertarian myself, I believe the law is unconstitutional. The government at every level has no vested interest in who I marry as long as the parties have reached age of majority.
I am NOT an Obama fan, and I agree he is a weak and ineffective president. I do however support the freedom of all people to arrange their lives without government approval. I'm hoping the Supreme Court strikes down the law, and thereby nullifying the states that prohibit the free exercise of self determination.
This is not a states rights issue, this is a civil rights issue.
"This is not a states rights issue, this is a civil rights issue."
"This is not a states rights issue, this is a civil rights issue."
The two are not mutually exclusive.
Howard is not a libertarian, he is a neocon, just read his other stories and it will be clear.
Obama is really good at ignoring laws and rules that he just doesn't like. In fact he is so good at ignoring them that he is actually the most ignorant President we have ever had.
Excluding Bush of course. Oh! and Reagan.
Uh. Did I mention Nixon?
Ford?
damn, we've pretty much had mostly crooks and ignorants on our side.
Please ignore I said anything in the first place..
Sure. Much more ignorant than Bush Jr.
The President didn't strike down anything. This press release simply states that the Department of Justice will no longer defend DOMA in court. There's still a long way to go before marriage will be legal for everyone.
What does the President think he is doing? Did someone suddenly do away with the Supreme Court making it now the job of our chief executive to perform Judicial Review on laws that have already been passed? This is a travesty! This is not Harvard, Mr. President! Your current position is not one that gives you the opportunity to do Law Review. Wake up, take care of the jobs you need to be taking care of and leave reviewing the constitutionality of laws to the Supreme Court!
Hi Ken. I would suggest that your assertion that this is a "travesty" is not well informed.
The opinion issued by the Administration does not in any way infringe upon the Judiciary's power of Judicial Review. The Executive Branch traditionally holds the power to adopt positions of policy regarding the constitutionality of laws, and to act accordingly. There is strong precedent for what the Administration is doing, here. Some examples of Presidents taking the position that a law is unconstitutional and refusing to defend that law in Court are U.S. v. Lovett (1946) and more recently, Bowsher v. Synar, (1986) and Agostini v. Felton (1997).
The litigants still have the right to appeal to the Supreme Court, and IF the SCOTUS agreed to hear that appeal (which is not constitutionally guaranteed), they would have the option of allowing an amicus defense if they felt it appropriate.
Obama didn't strike it down, he just has more relevant things to deal with than this stupid homophobic bill. We need to keep religion out of government. DOM is about using the Fed to regulate a Christian institution. If a Christian doesn't like gay marriage, he or she should simply marry someone of the same gender. Gay marriage isn't a threat to marriage, poor relationship skills is a threat to marriage. In the meantime, gays deserve the same civil rights as everyone else. Hate isn't a family value.
It seems clear to me that if Jesus were walking this earth today, based on his own teachings, he would be against DOM.
"In the meantime, gays deserve the same civil rights as everyone else."
I agree. Which is why I support extending all of the same "couples rights" to gays that heterosexuals enjoy. Since those rights already exist in civil unions, why are you making a federal case over something that by your own lights is a "Christian institution"? I've never heard a convincing argument on why marriage is so important gays. Please enlighten me.
Hi Frenchy. The freedom to marry is (according to our Supreme Court) a basic civil right. I would suggest that a basic civil right being invidiously denied to an arbitrary class of citizens should be a convincing enough reason for any U.S. citizen to object to such a ban.
As to the idea that marriage is somehow a uniquely religious institution, that simply isn't true and our current laws make that very plain.
Same sex marriages should not be permitted anywhere
Well, "separate but equal" may be fine with you Frenchy, but it doesn't sit well with everyone....
@Astrid: I can see where you think I am suggesting a "separate but equal arrangement," but please explain to me why "it doesn't sit well with everyone...." What is about marriage that gay people think they're missing that has elevated this to a national dialog?
Look, the rest of us already know that marriage can be hell...we tried to protect gays from all that suffering, but if they want to get married and join us in in hell, then, so be it...we warned them and warned them...all we can do now is step back and say "I told you so" after they get married.
@Walrus: I think you're joking, but that's actually part of my point. The other part is why gays want to get involved in this antiquated ritual. It seems contrary to everything else they seem to believe in, which is forward-thinking.
Marriage is much more than an 'antiquated ritual', it is a framework that defines an entire set of legal rights, obligations and allowances. This is what gays want from marriage. None of us needs the governments blessings to enjoy our lives with the one we love. We do need to be able to have the legal framework recognized.
Nice try but the "framework that defines an entire set of legal rights, obligations and allowances" is what civil unions guarantee.
If gays can get "married", why not polygamy? Why not animals? No-one is getting hurt! Oh yah, I was forgetting about children--recent studies are showing (what we knew all along) that traditional marriage (1 man, 1 woman, lifelong commitment) is the best for children. Related is the under-rated negative effect on children of divorces.
I can say, having been married for 30+ years now, that it gets richer every day, even though it's been incredibly hard at times. I suspect that is part of what makes it richer, and I have learned more what real love is about in the hard times.
"Gay marriage" seems more about gays trying to find inner peace and love, but it's a red herring--"gay marriage" will not do it for you, it takes a lot more than that. Gays will likely shout this down, but I know a number of ex-gays who have found healing and peace through Jesus, not that it was easy for them. He became my source of peace, too, and I was carrying a boatload of hurt I had to work through, just as many gays do.
BTW, hating anyone is wrong and anti-Christian. The Bible says very clearly that anyone who hates his brother does not know God, and is a lier if they claim otherwise.
RSBL, What are you doing here? Have you received another day pass?
i agree 100%
If gays can get "married", why not polygamy?
Why not? Because we have a Supreme Court decision that says that polygamy is not a constitutionally protected practice...Reynolds v. United States (1878).
"Why not animals?"
Animals can't sign contracts.
"[R]ecent studies are showing (what we knew all along) that traditional marriage (1 man, 1 woman, lifelong commitment) is the best for children."
Really? Can you cite those studies? According to this research summary issued by the American Psychological Association, your assertion is not correct.
http://www.apa.org/pi/lgbt/resources/parenting.aspx
This looks like you are selling a steaming pile of crap.
Equal rights for ALL Americans.
Let the race begin!
And with that, the Obama 2012 campaign has started working on the vote count.
'Marriage' has it's origin in religion, primarily Christianity. The bibe says that fornicators, adulterers and homosexuality are all detested by GOD. The bible is GOD's law, not man's!!! Not any person on this earth has the right to change or authority to change GOD's law, for it is not ours to change. This being the case, gay's should accept that they are not welcolme in God's Kingdom and be content with just 'being together'. Don't like it? Then change your ways and you will be accepted but don't try to corrupt God's laws to suit your own hipocritical desires!!!
"'Marriage' has it's origin in religion, primarily Christianity."
Factually incorrect. The earliest recorded western marriages were private legal arrangements that took place completely outside the auspices of any church. In christian history, it wasn't until somewhere around the 12th-13th centuries that christian priests began to officiate over weddings. And regardless, marriages in the U.S. are governed by SECULAR, not religious laws. What "god" may or may not have ordained (if such a being actually even exists) is irrelevant.
Marriage is not a religious institution. Marriage predates all forms of religion, including Christianity. There are two types of marriages: secular and religious. The argument is that public institutions should not deny equal rights. Civil unions are not equal to marriage. If that's the case, why don't we say that interracial couples can't get married but should get civil unions? Why are atheists allowed to get married instead of getting civil unions.
People use all kinds of justifications to defend their bigotry but this is indefensible. America is supposed to progress as a country and evolve to being a country of equal rights for everyone. Some people would rather move back to the "good ole days" when the only people who mattered in this country were Anglo Christian men.
sir look it's wrong
im not the one to judge and i will never be the one to judge
but look sir
if gay mariage was accepted then this will greatly decrease the human population
SIR WE WOULD REACH TO THE BRINK OF EXISTENCE
How novel. Injecting race for a change. Since you're so into history, let me ask you a puzzler. If this is so blanking important, why is it the topic never came up before now? Homosexuality been around as long as all the institutions you mention. Why suddenly is getting married so blanking important?
To suggest that "if gay mariage [sic] was accepted then this will greatly decrease the human population" is pretty silly. For one, there simply is no objective data that would suggest that, and it seems irrational to suggest that the existence of gay couples (who exist all the same regardless of whether or not we get married) somehow prevent straight couples from having kids.
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