2010-OCT: Department of Justice initially decides to appeal decisions:
U.S. District Court Judge Joseph Tauro in Massachusetts had ruled on 2010-JUL-08 on two similar lawsuits. The plaintiffs were successful in having the federal Defense of Marriage Act (DOMA) declared unconstitutional. The cases were:
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. This is the section that prevents the Federal Government from granting routine federal benefits to same-sex couples who have been married legally according to the marriage laws in their state. These are the same over 1,100 federal benefits that opposite-sex couples automatically receive when they marry. He cited four clauses in the U.S. Constitution that are violated by DOMA:
The equal protection clause of the 14th Amendment,
The federalism principle that powers not granted to the federal government nor prohibited to the states are reserved to the states or to the people -- found in the Tenth Amendment. This is a particularly powerful argument because for centuries states had sole responsibility to define which couples are eligible to marry within their jurisdiction. DOMA violated centuries of tradition by requiring the federal government to ignore legal marriages.
On 2010-OCT-12, the federal Department of Justice announced that it would appeal the two cases.
Within moments of the announcement, Mary L. Bonauto, Civil Rights Project Director of GLAD -- a group promoting equal rights for the LGBT community -- 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." 6
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." 7
The parties expected that the exchange of briefs would be concluded by 2011-Spring, with oral arguments scheduled by 2011-FALL.
Other lawsuits against DOMA that were active at the time:
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 inheritance taxes. 5
2011-FEB-23: Obama administration reverses decision and will abandon constitutional challenges to DOMA:
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 the District of Columbia or in one of the growing number of states that allow 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 clearly unconstitutional.
Because of this, the Department of Justice (DOJ) will not defend DOMA in current and future court constitutional challenges to Section 3. However, they will continue to enforce the law itself until either:
The U.S. Supreme Court definitively determines that the law is unconstitutional, or
Congress passes a law to modify or repeal DOMA. 2
The DOJ statement read:
"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." 10
"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." 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 ... [has been] 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 -- a group whose sole goal is to prevent same-sex couples from access to marriage, -- 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. It has zero chance of success as long as the House of Representatives remains under Republican control.
Negative reactions on the DOJ decision by religious and social conservatives:
George Washington University law professor and noted scholar of constitutional law, Jonathan Turley, is skeptical of the Attorney General's position. He said:
"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." 8
On 2011-FEB-23, Megyn Kelly appears to have made an error on Fox News' Americal Live program. She said:
The Obama Administration has just announced that it will no longer defend the Defense of Marriage Act in court. They call it DOMA. President Clinton signed this thing. It allows states to refuse to recognize same-sex unions from other states. It has been in place for more than a decade and the U.S. Attorney General Eric Holder has just announced that President Obama does not believe the law is constitutional and neither does Eric Holder. They're no longer going to be enforcing this federal law that's on the books, passed by Congress, signed by President Clinton and still very much a law. 9
In reality, both Holder and President Obama have promised to continue to enforce the OMA law by denying legally married same-sex couples the approximately 1,100 benefits automatically granted to legally married opposite-sex couples. They will defend this discrimination in court cases. However, they will no longer defend the constitutionality of DOMA in court.
Unfortunately, this same misinterpretation was repeated by many other conservative newscasters. This probably led countless American conservatives to believe, incorrectly, that the Obama administration was simply ignoring the DOMA law.
This misinterpretation has continued over a year. On 2012-JUN-02, an Email from the National Organization for Marriage -- which opposes marriage equality -- commented on the United States Court of Appeals for the First Circuit's ruling against the federal Defense of Marriage Act:
"...President Obama ordered his Justice Department to abdicate their duty to defend DOMA in court."
Rick Santorum, 2012 Republican candidate for the presidency, said:
"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?" 11
Santorum did not mention that many long term members of Congress who voted to pass DOMA during the Clinton presidency in 1996 have since publically admitted that their vote was a mistake.
The U.S. constitution has not changed since 2008, but the public's attitude towards loving committed same-sex couples has changed radically.
The last time that marriage was redefined in the U.S. was in 1967, when the U.S. Supreme Court legalized interracial marriages. Public opposition to such marriages dropped from 90% in 72% to 67% in 1967, and to less than 50% in 1991. This represents a rate of about 1 percentage point a year, which is similar to the drop in opposition to same-sex marriage currently.
Links to web sites containing additional conservative reaction to the administration's announcement are listed on the TowleRoad web site. 8