Attempts to have the federal "Defense of
marriage act" (DOMA) ruled unconstitutional
5. Obama administration decides to not
appeal the court decisions on DOMA
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Department of Justice initially decides to appeal decision:
U.S. District Court Judge Joseph Tauro in Massachusetts had ruled on 2010-JUL-08 on two lawsuits. They had successfully attempted to have the federal Defense of Marriage Act (DOMA) declared unconstitutional:
Gay & Lesbian Activists & Defenders, (GLAD) -- a LGBT positive group -- launched Nancy Gill v. Office of Personnel Management
A very similar case brought by the Commonwealth of Massachusetts, called Massachusetts v. Department of Health and Human Services,
Judge Tauro confirmed what the vast majority of constitutional experts have long believed: that Section 3 of DOMA was unconstitutional. He cited four clauses in the U.S. Constitution that were violated:
The equal protection clause of the 14th Amendment,
The due process clause of the 14th Amendment,
The spending clause,that gives the federal government its power of taxation (Article I, Section 8, Clause 1)
The federalism principle that powers not granted to the federal government nor prohibited to the states are reserved to the states or the people -- found in the Tenth Amendment.
On 2010-OCT-12, the federal Department of Justice announced that it wold appeal the two cases.
Within moments of the announcement, Mary L. Bonauto, Civil Rights Project Director of GLAD issued a statement:
"We fully expected an appeal and are more than ready to meet it head on, DOMA brings harm to families like our plaintiffs every day, denying married couples and their children basic protections like health insurance, pensions, and Social Security benefits. We are confident in the strength of our case."
Michael Cole, spokesperson for the Human Rights Campaign -- another LGBT-positive group -- said:
"While most advocates including GLAD expected the administration would appeal the DOMA cases, we remain disappointed and frustrated that they continue to defend a law that serves no purpose but to harm our families. However, GLAD and Massachusetts Attorney General Martha Coakley have already made an unassailable case against DOMA. We are confident they will prevail."
The parties expected that the exchange of briefs would be concluded by 2011-Spring, with oral arguments scheduled by 2011-FALL. But it was not to be.
2011-FEB-23: Obama administration decides to abandon appeals:
In Washington DC, Attorney General Eric Holder announced that the opinion of the Obama administration has changed with regard to Section 3 of the Defense of Marriage Act. This is the section that discriminates against same-sex couples who are legally married in one of the states that allows same-sex marriage. They agree with Judge Tauro that the section violates the equal protection component of the Fifth Amendment of the U.S. Constitution. Thus it is unconstitutional.
Because of this, the Department of Justice (DOJ) will not defend DOMA in the courts. However, they will continue to enforce the law until either:
The courts definitively determine that the law is unconstitutional, or
Congress passes a law to modify or repeal DOMA. 2
Holder wrote:
"The President has instructed Executive agencies to continue to comply with [the law], consistent with the executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality," Mr. Holder wrote: 3
Jon Davidson is the legal director of Lambda Legal, a pro-LGBT group involved in one of the lawsuits against DOMA. He said that the decision by the Department of Justice:
"... will have a very significant impact because it is easier for the courts to say 'we think this law is unconstitutional' if another branch is already saying that
One impact of the DOJ decision came the next day. U.S. District Judge Jeffrey White in the Northern District of California issued an order on FEB-24. The case involved a same-sex couple in California who were married in 2008. It concerns the granting of health benefits to the gay spouse of a federal worker. Judge White asked lawyers defending the U.S. Office of Personnel Management:
"How does the Executive [Branch] reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend?" 3
Brian Brown, president of the National Organization for Marriage -- an anti-same-sex marriage group -- said that his group had been meeting with Congressional members, attempting to have them intervene in the DOMA legal challenges. He said:
"The Obama administration is not going to live up to its duty, and now it is in Congress' lap to defend DOMA,"
Senator . Dianne Feinstein (D-CA) issued a statement saying that she plans to introduce a bill that "will once and for all repeal" the DOMA law.
Other active lawsuits against DOMA:
Connecticut: Pedersen et al v. Office of Personnel Management et al in Connecticut District Court. This is a case involving the USPS and seven plaintiffs. 4
New York: "Windsor v. The United States Of America," in New York Southern District Court, This involves a single plaintiff who is challenging her income taxes. 5
Negative reaction on the DOJ decision by religious and social conservatives:
George Washington University law professor and noted scholar of constitutional law Jonathan Turley talks to Salon about the DOMA news, and about the politics of making the announcement now: "These cases are coming up for appellate decision. So the cases themselves force this issue. The assumption is that the administration was waiting until after the midterm elections to take this position. Everyone that I've spoken to believes this decision was motivated by political considerations and not legal considerations. Eric Holder has proven an extremely political attorney general, much in the same way as the Bush attorneys general. His position not to prosecute torture, his decision to defend DOMA, and his prior decisions on DOMA were all driven by political considerations in the view of his critics. So I think that's what the motivation is."
Rick Santorum called the DOMA news part of Obama's "effort to erode" America: "When the definition of marriage has been put before the people, they have time and time again - from Maine to California - stood up in defense of the traditional family. President Obama's refusal to defend a law that was overwhelmingly supported on both sides of the aisle and signed into law by a president of his own party is an affront to the will of the people. This is yet another example of our president's effort to erode the very traditions that have made our country the greatest nation on earth, and it begs the question what language changed in the constitution since 2008 to reverse his position?"
In a press briefing today, White House Press Secretary Jay Carney reiterated the President's support for repeal of DOMA: "The president has long believed that DOMA — the Defense of Marriage Act — is an unnecessary and unfair law. He support repeal of the law. As for its constitutionality, obviously he made clear his views on that in the decision he made that was announced yesterday. But he does support the repeal, yes."
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