Last Wednesday, in a sharp reversal of policy, the Obama administration announced that it believes that Section 3 of the 1996 Defense of Marriage Act (DOMA) -- which prohibits the federal government from recognizing marriages of gay couples -- is unconstitutional and said that it
would stop defending the law. The government will, however, still be a party "in those cases in order to allow those cases
to proceed so that the courts can make the final determination about its constitutionality." In a press release announcing the change, Attorney General Eric Holder argued that laws regarding sexual orientation should be
subject to a higher level of review. "[T]he 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," Holder said. "The President has also concluded that Section 3 of DOMA, as applied to legally married gay 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."
July 6, 1854 First state Republican Party officially organized in Jackson, Michigan, to oppose Democrats’ pro-slavery policies
NOT DEFENDING DOMA: Back in July, a Federal District Court in Boston ruled that Section 3 of DOMA is
unconstitutional because it interferes with the traditional state right to define marriage and forces the state to "violate the equal protection rights of its citizens." The decision comprises
two separate challenges, one brought by the state of Massachusetts and the other by Gay and Lesbian Advocates and Defenders (GLAD) on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal benefits available to heterosexual married couples. In November 2010, plaintiffs also
filed two new lawsuits challenging the constitutionality of Section 3 of DOMA "in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny." These latter suits led the government to revisit its support for the Act. Unlike previous challenges, the November lawsuits were filed in districts covered "by the appeals court in New York -- one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people." As White House Press Secretary Jay Carney explained, a court-imposed deadline by the Second Circuit "
required a decision by the administration about whether or not this case should require heightened scrutiny, a heightened constitutional review." Carney added that "the Attorney General recommended that the higher level of scrutiny be applied and under that higher level of scrutiny deemed or recommended that it be viewed as unconstitutional. The President reviewed that recommendation and concurred." Carney reiterated, however, that Obama is
still required to enforce the law. Pressed further on Obama's personal position on the marriages of gay couples, Carney only said, "
He's grappling with the issue."
February 11, 1856 Republican Montgomery Blair argues before U.S. Supreme Court on behalf of his client, the slave Dred Scott; later served in President Lincoln’s Cabinet
FOLLOWING THE 'ROBERTS RULE': In a separate letter to Congressional leadership, Holder
pointed to the long history of past administrations choosing not to defend legislation. "[T]he Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a 'reasonable' one," Holder wrote. "[T]he Department has declined to defend a statute 'in cases in which it is manifest that the
President has concluded that the statute is unconstitutional,' as is the case here." In 1996, Justice Department officials
informed the Senate that the DOJ did not uphold the law "in 1946, 1963, 1979, 1980, 1983, 1988, 1990 and 1992." In 1990, as the number two man in the solicitor general's office,
Chief Justice John Roberts "declined to defend federal laws which
set a preference for awarding broadcast licenses to entities with a certain level of minority ownership," arguing that "the FCC's policy
violated the 14th Amendment's equal-protection clause because it unfairly discriminated based on race." President George W. Bush similarly
didn't defend a law prohibiting the display of marijuana policy ads in ACLU et al., v. Norman Y Mineta and President Clinton
did not uphold a law "barring HIV-positive men and women from serving in the armed forces because they deemed it unconstitutional." February 22, 1856 First national meeting of the Republican Party, in Pittsburgh, to coordinate opposition to Democrats’ pro-slavery policies
RIGHT WING STEPS IN: After issuing
a mild condemnation of President Obama's decision last week, House Speaker John Boehner (R-OH) suggested in an interview published Monday that he or the House of Representatives
may seek to defend the law in the government's stead. During an appearance on the Christian Broadcasting Network's 'The Brody File,' Boehner assured right-wing Christian listeners that Republicans will soon decide how to proceed in upholding the Act. "[I]f the President won't defend DOMA then you'll see the House of Representatives
defend our actions in passing a bill that frankly passed overwhelmingly," he said. "We've been researching all the options that are available to us. We'll be talking to the members in the next few days about that and I expect we'll have a decision by the end of the week." House Majority Leader Eric Cantor (R-VA)
reiterated Boehner's pledge during a Monday afternoon press conference, saying, "Again I do believe that this is a case that is distinguishable on its merits and to have the administration take the position, the president take the position, that he's not defending the law of the land, is something very troubling I think to most members of the House," Cantor said. Asked what House Republicans planned to do, he added, "I think you'll see that on Friday." The leadership's comments align Republicans with the most social conservative faction of the GOP and
anti-gay groups like the Family Research Council, the National Organization for Marriage, the American Family Association. Rick Santorum, Newt Gingrich, and Rep. Steve King (R-IA) have also embraced their message and have been calling on the party to push back against the President's decision. Santorum asked Boehner to
defend DOMA in court, while Gingrich and King have both proposed "cutting the funding to the Justice Department" in response to the decision. Gingrich even went so a far as to argue that Obama is
violating his "Constitutional oath."
March 27, 1856 First meeting of Republican National Committee in Washington, DC to oppose Democrats’ pro-slavery policies
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