Feature Story - April 2011
Obama Administration No Longer Defending DOMA
Holder stressed the Justice Department would continue to enforce the law, but would no longer defend its constitutionality in court challenges.
The Justice Department, under President Obama, announced recently that it believes, the Defense of Marriage Act is unconstitutional, and will no longer defend it in court.
Approved by Congress in 1996, DOMA defines marriage as the union between a man and a woman. Also under the statute, a state does not have to recognize a same-sex marriage performed in another state.
In announcing the policy reversal, Attorney General Eric Holder stated, "The President and I have concluded that classifications based on sexual orientation should be subjected to a strict legal test intended to block unfair discrimination. As a result, a crucial provision of the Defense of Marriage Act is unconstitutional."
Holder added, "Members of Congress who wish to defend the statute may pursue that option."
In a subsequent news briefing, White House Press Secretary, Jay Carney, said, "The President's position on the Defense of Marriage Act has been consistent. He has long opposed it as unnecessary and unfair."
DOMA currently is facing a handful of legal challenges around the nation.
Soon after Holder's announcement, House Speaker and Ohio Republican John Boehner convened a meeting of the Bipartisan Legal Advisory Group to vote on having the House intervene in the DOMA lawsuits.
The five-member panel consisting of the Speaker of the House, Majority Leader, Majority Whip, Minority Leader and Minority Whip voted 3-to-2 to defend DOMA. Under House rules, BLAG has the authority to instruct the non-partisan office of the House General Counsel to take legal action on behalf of the House of Representatives.
Boehner subsequently issued a brief statement.
"After consultation with the Bipartisan Legal Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law. This action by the House will ensure that this law's constitutionality is decided by the courts, rather than by the president, unilaterally."
In an interview with Christian Broadcasting Network, Boehner accused the president of political posturing on the contentious issue.
"It strikes me as something that's just as raw politics as anything I've seen, knowing that a lot of people who believe in DOMA are probably not likely to vote for him, and pandering to the other side on this issue."
The American Civil Liberties Union joined some gay rights organizations in applauding the president's move.
ACLU Executive Director, Anthony Romero, said, "The president did the right thing and just propelled gay rights into the 21st Century, where it belongs. Our government finally recognizes what we knew 15 years ago–that the so-called ‘Defense of Marriage Act' is a gross violation of the Constitution's guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America. Our Constitution promises that the government will treat everyone equally. The administration's announcement is a recognition that gay people, too, are promised equal treatment under the law."
Michael Keegan, President of the People For the American Way, stated, "In the 15 years since DOMA was made law, it has hurt untold numbers of gay and lesbians, depriving them of the rights to enjoy the full benefits of marriage and forcing them to live as second class citizens. The president has chosen to defend the Constitution of the United States over a discriminatory and clearly unconstitutional law. That decision should be commended. A discriminatory law like DOMA has no place in a country grounded in the values of freedom and equality."
Lambda Legal Director, Jon Davidson, said, "This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people. The president and the attorney general recognized what we have been saying in court since the day we opened our doors: discriminating against people on the basis of sexual orientation should be presumed to be unconstitutional, and unconstitutional laws should not be defended. It is past time for DOMA to become only an ugly part of our nation's history."
Likewise, Human Rights Campaign President, Joseph Solmonese, stated, "What should never be lost in this debate is that every day, DOMA denies fundamental protections like Social Security benefits to legally married couples and their families. If Congress wants to make the lives of Americans better, it should be repealing DOMA, not wasting time and resources defending it."
Several religious leaders and pro-family organizations denounced the President's action, and praised Boehner for proceeding to defend DOMA.
A joint letter by leaders of the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the Southern Baptist Convention, the Anglican Church in North America, the International Church of the Foursquare Gospel, and the World Sikh Council, urged Boehner to "lead the House to take the important, necessary step to protect American law, American families and American values by defending DOMA and protecting the true meaning of marriage."
Their letter, in part, also read, "As you are surely aware, DOMA was passed in 1996 by strong, bipartisan majorities. The law is crucial because it gives states the authority to make their own decisions regarding the recognition of marriages, and defines marriage at the federal level as a ‘legal union between one man and one woman,' preventing the federal government from recognizing same-sex ‘marriages.'
While the traditional definition of marriage has faced legal and popular challenges of late, a clear majority of Americans oppose same-sex ‘marriage' in all state referenda and initiatives where the issue has been raised. The definition of marriage is one of the central questions facing our society today. The American people do not want their wishes being overruled by the judiciary–or the executive.
By choosing to no longer defend DOMA in federal court because it believes the law to be unconstitutional, the Obama administration has undermined the rule of law and the separation of powers," the religious leaders stated.
Family Research Council President, Tony Perkins, stated, "We commend Speaker Boehner for intervening to defend DOMA. This follows President Obama's decision to abdicate the requirement of his constitutional oath that he ‘take care that the laws be faithfully executed.' A forceful intervention is a necessary response that will limit the dangerous precedent set by President Obama's refusal to defend DOMA. The speaker is sending a bold message that Congress will not stand idly while the president picks and chooses which laws will be nullified by Executive Branch surrender to antagonistic litigants."
Perkins' view was shared by American Center for Law & Justice, Chief Counsel, Jay Sekulow.
"The idea that the President of the United States can order the Department of Justice not to defend a law, duly passed by Congress and signed into law by the President, should send shockwaves through anyone who is concerned with civil rights and civil liberties. The President isn't a king. He doesn't make decrees. He is the chief executive with the responsibility to enforce existing laws–even laws he doesn't like," Sekulow said.
Their sentiments were echoed by Concerned Women for America Chief Executive Officer, Penny Nance.
"This tyrannical decision by President Obama is perhaps his most shameful move yet. DOMA is the law of the land, whether he personally likes it or not. For him to circumvent the will of the American people, once again, to impose his latest personal fad into federal law is simply disgraceful.
President Obama insults the majority of Americans who believe marriage is the union between one man and one woman. Americans should not stand for this," Nance stated.
American Family Association, in a statement, said, "This sets a very dangerous precedent, in which a president decides which federal laws he will defend and which he will not. He has changed our government from the rule of law, to the rule of one man."
Maggie Gallagher, chairman of the National Organization for Marriage, said, "On the one hand, this is a truly shocking extra-constitutional power grab in declaring gay people are a protected class, and it's also a defection of duty on the part of President Obama. On the other hand, the Obama administration was throwing this case in court, anyway. The good news is, this now clears the way for the House to intervene and to get lawyers in the courtroom who actually want to defend the law, and not please their powerful, political special interests."
Liberty Counsel Founder and Chairman, Mathew Staver, said, "Traditional marriage is the cornerstone of America. Redefining marriage is not in the best interest of the family unit. Abandoning the Defense of Marriage Act is tantamount to declaring war on the family. We fully support the action by Speaker Boehner. We must strengthen marriage, not destroy it or redefine it."
Same-sex marriage currently is legal in Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia. Thirty states have constitutional amendments banning gay marriage. Several other states recognize same-sex civil unions, but not gay marriage.
Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, weighed in on the debate.
"Many of us have been saying all along that the Defense of Marriage Act, signed into law in 1996 by President Clinton, was an insufficient, and a breachable defense against having same-sex marriage foisted upon citizens in states that don't want it, by states that have approved it. I am both convinced and hopeful that the administration's action will do nothing but reinvigorate the movement in the country for an amendment to the U.S. Constitution to protect marriage," Land said.
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