The best news you’ll hear today

The Obama administration has ordered the Justice Department to stop defending the Defense of Marriage Act, because it’s unconstitutional.

President Obama has decided that the Defense of Marriage Act is unconstitutional and has asked his Justice Department to stop defending it in court, the administration announced today.

“The President believes that DOMA is unconstitutional. They are no longer going to be defending the cases in the 1st and 2nd circuits,” a person briefed on the decision said.

The administration will formally notify Congress later today. The act sought to restrict single-sex unions.

The President has won favor with the gay community recently by winning a repeal of the military’s “Don’t ask, don’t tell,” policy, which was passed during the lame duck Congress in December. At that time, he reiterated his support for repealing the DOMA, passed under President Clinton in 1996, but did not take further steps toward repeal.

His administration defended the law as recently as January, when the Justice Department defended the law against a ruling that said it violated the rights of states to set their own marriage policies.

Bam. That’s why electing Democrats matters. The DOJ statement is here.


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About Jill

Jill began blogging for Feministe in 2005. She has since written as a weekly columnist for the Guardian newspaper and in April 2014 she was appointed as senior political writer for Cosmopolitan magazine.
This entry was posted in GLBTQ, Law, Marriage and tagged . Bookmark the permalink.

43 Responses to The best news you’ll hear today

  1. Pingback: BREAKING: Obama has told DOJ to stop defending DOMA in court! « Speaker's Corner

  2. gretel says:

    Of course I’m happy about this, but a Democrat was the one who signed it into law in the first place. Isn’t Obama against gay marriage?

    • Jill says:

      Right, but a Democrat signed DOMA into law 15 years ago, when there was a very different political culture around LGBT rights. If a Republican had been in office, it would have been worse; if a Republican was in office now, there’s no way that the DOJ would stop defending these cases.

      This is a very big deal: The DOJ is basically saying that discrimination based on sexual orientation deserves a high standard of legal scrutiny, and that because there is no rational basis for discriminating against same-sex couples the government is no longer going to defend that position in court. That’s huge, regardless of Obama’s personal views on gay marriage. Also, I suspect that Obama isn’t actually opposed to gay marriage, but has said so because even a year ago that was the only acceptable position from mainstream politicians. I feel like that’s going to change (just like his view on the constitutionality of DOMA has apparently changed).

  3. Becca Stareyes says:

    So what happens now, if DoMA is not defended in court and the circuit judges rule it unconstitutional, but the law is still on the books, since I doubt the House will repeal it with a Republican majority?

    Since DoMA’s provisions are:
    1. The federal government only recognizes marriages between two opposite-sex people.
    2. State governments may choose to recognize or not recognize marriages performed in other states between two same-sex people.

    Does that mean if the law stands as unconstitutional that the feds and other states have to recognize same-sex marriages? Or does it only apply to those districts where the judgment was passed, or those particular cases?

    Man, it’s been a while since 9th grade civics.

    • Jill says:

      Becca, it basically means that state laws on marriage will control — so state governments can still choose to recognize or not recognize same-sex marriages, and same-sex marriages performed in other states. Other states and the federal government will not have to recognize same-sex marriages. It’s more of a legal importance than a practical one — the federal government is no longer defending cases where DOMA is challenged, which means they’re essentially refusing to help create a body of law that says there’s some rational basis for restricting marriage to opposite-sex couples. That helps set the stage for pushing those arguments further in other court cases, and eventually (hopefully) ruling that restricting marriage to opposite-sex couples has no rational basis and is constitutionally impermissible.

      So, really, it’s groundwork. But it’s very important groundwork (and it has immediate and important impacts on the current cases being litigated in circuit court).

  4. Hugo says:

    This is indeed a happiness.

  5. Jess says:

    Lately I have been afraid to read or watch the news, because every time I turn around something is happening to fill me with rage (attack on Planned Parenthood, My states attempt at “Abortion Provider Hunting Season”)…

    I needed to hear this today. I needed this so bad. There is still hope.

  6. Yonmei says:

    Becca Stareyes: So what happens now, if DoMA is not defended in court and the circuit judges rule it unconstitutional, but the law is still on the books, since I doubt the House will repeal it with a Republican majority?

    Optimistically, it means that eventually a DOMA case reaches the Supreme Court and seven out of the nine justices agree that it is unconstitutional and Scalia will fulminate about sodomy and Thomas will keep quiet and write an unvoiced opinion against same-sex marriage – and then a couple married in Massachusetts can live in Virginia and know their marriage is valid.

    Realistically, it means that until either 2013 or 2017, depending when the next Republican President gets in, DoJ will no longer defend court cases against same-sex marriage and everything will go on as before – Obama’s seemed pretty confident since he asked Rick Warren for his inauguration, that he doesn’t need to do anything for LGBT equality because he’s always going to be a better prospect than the alternative.

  7. Kate AuH2O says:

    i think this should be in the original post!

    Jill: Becca, it basically means that state laws on marriage will control — so state governments can still choose to recognize or not recognize same-sex marriages, and same-sex marriages performed in other states. Other states and the federal government will not have to recognize same-sex marriages. It’s more of a legal importance than a practical one — the federal government is no longer defending cases where DOMA is challenged, which means they’re essentially refusing to help create a body of law that says there’s some rational basis for restricting marriage to opposite-sex couples. That helps set the stage for pushing those arguments further in other court cases, and eventually (hopefully) ruling that restricting marriage to opposite-sex couples has no rational basis and is constitutionally impermissible.
    So, really, it’s groundwork. But it’s very important groundwork (and it has immediate and important impacts on the current cases being litigated in circuit court).  

  8. jayinchicago says:

    when there was a very different political culture around LGBT rights

    I think in some ways it’s gotten worse since then.

    • Jill says:

      How has it gotten worse? 15 years ago, marriage wasn’t even realistically on the table. Now everyone basically understands that same-sex marriage will be law at some (hopefully soon) point.

  9. Lori says:

    That *is* the best news I’ve heard all day. I’ve no doubt that there will be GOP politicians foaming at the mouth today, and that we’ve not heard the end of this fight. But it’s a huge step in the right direction.

  10. gretel says:

    I’m really confused by this: “Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.” (http://www.justice.gov/opa/pr/2011/February/11-ag-222.html) So the Justice Department, which is part of the executive branch–won’t defend the law, but the executive branch will “enforce the law.” Huh?

    I’m not trying to be a downer. I just genuinely want to know what this means.

  11. Lori says:

    You’re not being a downer. What the AG is saying is that the law will remain in effect until Congress repeals it (which they won’t) or a court (such as the Supreme Court) strikes it down. The AG is saying that the Justice Department won’t assert the constitutionality (or, its legality) in court. The comment about the Executive Branch still “enforc[ing] the law” is form over substance, in that technically, the Executive Branch can’t strike down a law. The DOJ needs Congress to repeal the law or a court to strike it down. I’m not sure how the Executive Branch will, practically, “enforce” the law.

  12. jake says:

    Yeah, this really makes up for all the other concessions to the political right the Obama administration has done. One step at a time I guess. Sigh.

  13. Kristen J. says:

    I *think* the Section 3 reference is to benefits and tax recognition for same sex marriage.

  14. gretel says:

    Lori: Thanks. That makes more sense. I’m rooting for the legal challenges against DOMA! (I of course wish Congress would just repeal the damn terrible law, but that will be the day!)

  15. Jim says:

    jayinchicago: I think in some ways it’s gotten worse since then.

    I live this shit, jay, and that’snot what I see. Do you think the Fundies are louder and more hateful now? And fail to see that as a sign of desperation? That is a very, very good sign.

    Yeah, Clinton signed DOMA. And he was a Democrat. So does that mean Obama hasn’t told Holder to drop those two lawsuits simply because he’s a Democrat too? Hey, Jefferson Davis was a Democrat; does that mean Obama is in favor of slavery too?

  16. Raja says:

    All I can say is, its about time.

  17. PrettyAmiable says:

    Jim: Do you think the Fundies are louder and more hateful now? And fail to see that as a sign of desperation? That is a very, very good sign.

    I’ve never thought of it this way. Do you really think that’s what’s going on? Rarely have I seen desperation be effective, so it gives me hope as an ally. I was scared that ridiculous backwardness was becoming the dominant narrative in the US.

  18. jayinchicago says:

    Ok Jill, but “gay marriage” certainly isn’t the ONLY thing that matters to “LGB/…t” rights. I think I’ve seen enough evidence with my own eyes that trans people are much worse off economically than they were 15 years ago–and that effects housing, education, physical and mental health. Some of that is due to the current recession effecting everyone, but I don’t think emerging visibility of trans people has necessarily been that great for us. The security culture/industrial complex (slight smirk) after 9/11 has made being ‘stealth’ in employment much harder, just as one example of something that hasn’t been “progress progress progress!”

  19. Drakyn says:

    *yawn*
    K, can HRC now get to work on getting an [inclusive] ENDA passed, real health care reform (ie with an actual public option), some sort of New Deal-esk thing, strengthen labor laws & regulations, increase the budgit for welfare/ssdi/etc, reduce the budget for the military industrial complex (focusing on mothballing useless shit, getting rid of no-bid contracts with Halliburton & co, and similar things; they should send some of that money to increase veteran support & healthcare and the like), and other shit that needs to be done?

  20. Bridget says:

    That is very good news!

  21. Kristen J. says:

    @Drakyn,

    Sure, right after we elect *progressive* representatives….

  22. CartoonCoyote says:

    This is indeed great news, but want to know what else was pretty good? How about Scott Walker finally proving, for all to hear, what an unethical scumbag he is to somebody pretending to be David Koch?

    http://www.huffingtonpost.com/2011/02/23/scott-walker-prank-call_n_827370.html

    Possible ethics charges? Impeachment? Between that and the news about DOMA, I’m having a good night!

  23. Mike says:

    I hate to side with Fox News on this one, but…

    The DOJ is charged with defending federal law in courts for a reason. It’s because there needs to be a branch of government willing to defend unpopular laws. This decision by the Obama administration sets a huge precedent. It effectively allows the executive branch to pick and choose what laws they will defend.

    Imagine in some not too unlikely future that we have a Republican president of the Rand Paul variety who thinks that the 1964 Civil Rights Act violates the “rights” of businesses to serve those whom they choose. So when Racist Joe in Mississippi decides not to serve blacks in his restaurant, and is sued, a Rand Paul directed DOJ could decide not to prosecute Racist Joe and cite (God help us) the precedent of a black president. (It’s this type of shit that keeps Fox News in business.) Then the black plaintiff would be forced to seek or hire outside legal aid, which is potentially even more pernicious considering the intersection of race and poverty.

    A very similar scenario could be drawn with a Republican president and sex discrimination if we had, you know, an Equal Rights Amendment.

    Now believe me, I understand that DOMA codifies discrimination into law. I understand that defending it collaborates with injustice. But the DOJ’s defense of DOMA represents one of those areas where justice claims come into conflict. And sadly, American legal jurisprudence forces unjust prioritizations of a utilitarian nature. I like to believe that every act of injustice should be opposed to the fullest extent possible, but I’m not sure that is the best way to negotiate the American legal system.

    Let me end by apologizing if I am offending anyone. That’s not my intention. I oppose discrimination based on sexual orientation, but the American political and legal system has a history of pitting progressive groups against each other in order to fracture and prevent inter-group alliances, and I’m afraid the result of this decision by Obama might be something similar in the future.

  24. Ens says:

    If Obama can do this now, then how does him *not* doing this now in any way prevent your nightmare scenario of de-integration?

  25. becky says:

    The DOJ is charged with defending federal law in courts for a reason. It’s because there needs to be a branch of government willing to defend unpopular laws. This decision by the Obama administration sets a huge precedent. It effectively allows the executive branch to pick and choose what laws they will defend.

    Really?! This might be a faulty analogy, but this is certainly not the first time the president and the DOJ have decided on finally giving up the defense of discrimination: In the 1940s, the Justice Department and State Department became amicus curiae in law suits in favour of ending racial segregation (and yeah, it took ’em long enough…), despite it’s legality in the South. That was a small step in ending segregation, but an important addition to social activism, I think. This is not about refusing to defend “unpopular” laws, this is about refusing to take part in a legal fight *for* discrimination and unconstitutional inequality. It’s the least they can do…

  26. Kristen J. says:

    @Mike,

    Once again Fox is engaging in fearmongering. Obama’s decision isn’t unprecedented. He isn’t breaking new ground for the executive branch. He hasn’t refused to *enforce* the law he sees as unconstitutional. Congress will likely take up the gauntlet of assholery and defend it themselves. FSM only knows how SCOTUS will come down. I want to believe that even they can see DOMA as blatantly unconstitutional…but their obvious meter seems to have been lost in the last few years.

    So, to recap. Fox is full of shit. If Rand makes it to office, he can *believe* that the Civil Rights Act is unconstitution and refuse to defend challenges to its Constitutionality. The consequence will not be the end of the Civil Rights Act. (But such an occurrence would signal the end of US civilization…)

  27. Manju says:

    This decision by the Obama administration sets a huge precedent.

    Does it? Via Volokh, a Clinton DOJ letter detailing previous instances:

    http://cdn.volokh.com/wp/wp-content/uploads/2011/02/DOJ1996.pdf

  28. gretel says:

    Jim: Hey, Jefferson Davis was a Democrat; does that mean Obama is in favor of slavery too? Jim

    Sorry, but that’s a ridiculous and specious comparison. Jefferson Davis was president of the Confederacy . . . in the 1860s. Clinton was president OF THE UNITED STATES during the 1990s–and he plays a role in the Obama administration. The Democratic Party has undoubtedly changed since the 1860s! It’s also changed since the 1990s, but I, for one, would like it to come back to the left a bit more from the centrist shift it experienced under Clinton.

  29. Dekker451 says:

    Jill: Bam. That’s why electing Democrats matters. The DOJ statement is here.

    Then how do you explain the Obama administration’s actions in defense of the DADT policy? It seems rather inconsistent with your assumption.

    This is the problem with partisan politics. If you choose to mindlessly vote based on party affiliation and empty promises then don’t be surprised when you’re betrayed.

    • Jill says:

      Then how do you explain the Obama administration’s actions in defense of the DADT policy? It seems rather inconsistent with your assumption.

      Um, what? You mean when the Obama administration repealed DADT?

  30. Jim says:

    jayinchicago: I think I’ve seen enough evidence with my own eyes that trans people are much worse off economically than they were 15 years ago–and that effects housing, education, physical and mental health.

    I think the T part of LGBT gets the short end of the stick every time, and I am talking about the way the LGB part treats them like an afterthought, but that’s just based on things people say. I don’t know how they fare with the mainstream. But it’s interesting that you think things were better 15 years ago.

    gretel: Sorry, but that’s a ridiculous and specious comparison.

    Well yes. It was in response to a specious comment. Clinton plays a role in the Obama administration? – he has a bit part and he doesn’t get very many lines.

  31. RD says:

    Drakyn: *yawn*
    K, can HRC now get to work on getting an [inclusive] ENDA passed, real health care reform (iewith an actual public option), some sort of New Deal-esk thing, strengthen labor laws & regulations, increase the budgit for welfare/ssdi/etc, reduce the budget for the military industrial complex (focusing on mothballing useless shit, getting rid of no-bid contracts with Halliburton & co, and similar things; they should send some of that money to increase veteran support & healthcare and the like), and other shit that needs to be done?  

    Word.

  32. gretel says:

    Bill Clinton not getting very many lines? The man is in love with the sound of his own voice.

    http://www.youtube.com/watch?v=6Ac9uDLUdSs

    Jim: Clinton plays a role in the Obama administration? – he has a bit part and he doesn’t get very many lines. Jim

    Jim:
    I think the T part of LGBT gets the short end of the stick every time, and I am talking about the way the LGB part treats them like an afterthought, but that’s just based on things people say. I don’t know how they fare with the mainstream. But it’s interesting that you think things were better 15 years ago.
    Well yes. It was in response to a specious comment. Clinton plays a role in the Obama administration? – he has a bit part and he doesn’t get very many lines.  

  33. Jim says:

    gretel: Bill Clinton not getting very many lines? The man is in love with the sound of his own voice.

    And that proves he has some insider role in the Obama Adminstration? Lots of people are in love with the sound of their own vocie. Bill Clinton is the spouse of a cabinet level official. That’s about the extent of his influence, and we all know how much he cracks the whip on her.

  34. sina says:

    Jill, I would love it actually if you could do a bit more legal analysis up front on what this means, because while it does sound like a good thing, I have no way to tell because I don’t really know what it is. Does it mean that if I get gay married in Iowa, that Missouri is bound to respect that? Does it mean that I have to file a claim against the state of Missouri to try and get them to respect that? And that if it goes to the Supreme Court, this just means that the state of Missouri has to make the case that this is a state’s rights issue, and the DOJ just won’t send someone to defend DOMA on the basis of full faith and credit, or something? I just don’t see how it’s ultimately that different from what’s already underway, except in a symbolic sense. I’ve been trying to read up on it, and despite being not totally unfamiliar with the law, I’m still feel pretty stupid about the whole thing. I figure you’re the woman to ask.

    Also, I think it’s totally legitimate to ask when we can move beyond marriage. I’m not trying to get the state to sanction the sex I have as legitimate as opposed to those other weirdos over there who are ruining! the! family!, but I would like to have health insurance. That would be super.

  35. Maggie says:

    Not to sound overly pessimistic, because I am a big fan of this development, but I’m kind of in Drakyn’s *yawn* mode. I’m ready for the mainstream gay movement to start talking about something other than marriage. Same-sex marriage is important, yes, but there are so many other issues that affect queer people. I’d love to see more radical organizing, although I understand that there’s limited potential for radical queer organizing to actually work on a federal level. While this is an important development for legal precedent (if I’m understanding it correctly – I’m not a lawyer), I don’t see much possibility for practical action coming out of it any time soon.

  36. Diana says:

    I think the President is sly like a fox.
    The conservatives had been saying that the DOJ was not defending the law enough, that the DOJ wanted to lose the case.

    With the President stepping aside, Congress can now defend the bill. The GLAD press release said…

    Moreover, the Attorney General notified Congress that it will not defend the Second Circuit cases and either chamber may step in and appoint counsel to defend DOMA.

    If the Republican House picks up the case and loses the case, the Christian right cannot blame the President.

  37. Ending DOMA has exactly what concrete benefit for GLBTQ folks that any single one will realize in this lifetime? Remember Obama and Holder’s promises on raiding medical weed co-ops, state secrets, rendition, Guantanamo and a saner immigration enforcement approach? Hows all that working out?

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  39. Jim says:

    Maggie: Same-sex marriage is important, yes, but there are so many other issues that affect queer people.

    Yes yes yes. Employment discrimination is a big one. The treatment of queer youth within families, and the resulting runaway/homeless problem comes to mind too.

    Nandalal Rasiah: Ending DOMA has exactly what concrete benefit for GLBTQ folks that any single one will realize in this lifetime?

    Are you trying to ask how this benefits single LGBT people? Probably not much. How does that take away anything from this?

    Nandalal Rasiah: Remember Obama and Holder’s promises on raiding medical weed co-ops, state secrets, rendition, Guantanamo and a saner immigration enforcement approach? Hows all that working out? Nandalal Rasiah

    What’s your point? What possible relevance does any one of those issues have to this one?

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