Obama ditches DOMA and other marriage equality news

U.S. Attorney General Eric Holder announced yesterday that the Department of Justice will no longer defend Section 3 of the 1996 Defense of Marriage Act in court. Section 3 defines marriage as the union of one man and one woman for federal purposes. It has been challenged in court multiple times, and last July a federal judge ruled the provision unconstitutional. The DOJ appealed that ruling, but Holder announced yesterday that President Barack Obama

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.   I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.   We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.   I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.   The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

I’ve posted Holder’s complete statement after the jump. It notes, “Much of the the legal landscape has changed in the 15 years since Congress passed DOMA.” While some conservative commentators were outraged by the announcement, it’s important to remember that the Obama administration hasn’t stopped enforcing the DOMA despite the president’s opinion of the law.

Linda Hirshman argues that Obama has laid a trap for Congressional Republicans, who will look foolish in federal court if and when they defend Section 3. I think she is way too optimistic that the federal appeals process will uphold last year’s district court opinion. Hirshman and I may find the legal arguments supporting the DOMA weak, but it would not surprise me to see a 5-4 U.S. Supreme Court ruling affirming the constitutionality of Section 3.

I was surprised to see so little Iowa reaction to Holder’s announcement. The outcome of this federal litigation will affect thousands of legally married Iowa same-sex spouses, who would be eligible for some federal benefits if the law is struck down. As far as I know, Senator Chuck Grassley is the only Iowan in Congress to issue a statement on yesterday’s news. He’s the ranking Republican on the Senate Judiciary Committee, and he criticized the Obama administration’s decision as “clearly based more on politics than the law.” He stopped short of promising to help with the DOMA legal defense, but presumably Congressional Republicans who are attorneys will handle that. I posted Grassley’s complete statement after the jump.

Republicans in the Iowa legislature continue to fight marriage equality. A constitutional amendment to define marriage as between one man and one woman passed the Iowa House last month but will not reach the floor of the Iowa Senate. A short-lived legislative effort to legalize discrimination against married same-sex couples was backed by many Republicans and at least one Democrat, but House Judiciary Committee Chairman Rich Anderson tabled that bill before it received a subcommittee vote.

A new bill, House File 330, would prevent Iowa county recorders from issuing marriage licenses to same-sex couples “until such time as an amendment to the Constitution of the State of Iowa defining marriage as the legal union of one man and one woman is submitted to the electorate for ratification.” The same bill would block the Iowa Supreme Court from considering its constitutionality. There are some pretty big problems with that idea, though:

That outcome: Iowa families could appeal a recorder’s decision in trial courts but those decisions would not be able to be appealed to the Iowa Supreme Court.

It would make the lower courts ruling final and it would also set up the likelihood that Iowa would have pockets of the state were the law was recognized and others were it was thrown out.

“I think the result is that you would have a hodgepodge of rulings across the state,” Bartrum said. “It would depend on whatever the local district judge thought because were would be no uniform appeal.”

FRIDAY UPDATE: According to Troy Price of One Iowa, House Speaker Kraig Paulsen has communicated by e-mail that House File 330 is going nowhere. KCRG reports,

Top Republicans on Thursday said they have no plans to debate the issue, viewing it a nod to the party’s social conservative wing. […]

Backers say introducing the measure is one more opportunity to voice their displeasure with how the marriage issue has been handled.

Republican Rep. Betty De Boef says the issue has been handled badly and that some lawmakers want to take every opportunity to make that point.

In related news, Maryland is likely to become the sixth state to grant full marriage rights to same-sex couples. A bill on marriage equality is advancing in the Maryland Senate and has substantial support in that state’s House of Delegates. Democratic Governor Martin O’Malley will sign the bill if it reaches his desk.

Washington, DC has recognized same-sex marriages since December 2009. Some U.S. House Republicans are pushing a bill to reverse that policy. If a same-sex marriage ban for the nation’s capital cleared the House and the U.S. Senate, Obama would probably veto it given his decision to stop defending DOMA.

Hawaii’s new Democratic governor Neil Abercrombie signed a civil unions bill yesterday, bringing the number of states that recognize same-sex civil unions to seven. Republican Governor Linda Lingle vetoed a similar bill in Hawaii last year.

Share any relevant thoughts in this thread.

UPDATE: The Washington Post reports,

Some opponents of same-sex marriage said the administration’s decision could end up helping to preserve the law in court.

“The previous efforts of the Obama administration and DOJ to defend the law were so inadequate as to raise the suspicion that the Justice Department was deliberately throwing the case,” said Robert George, a political science professor at Princeton University who opposes same-sex marriage. “Chances are the law will get a robust defense, and I suspect it will withstand constitutional scrutiny.” […]

In his letter to [House Speaker John] Boehner, Holder criticized portions of the congressional debate leading up to the law’s passage, saying they had undermined the prospects for defending the measure. “The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus that the Equal Protection Clause is designed to guard against,” Holder wrote.

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Judge rules part of federal Defense of Marriage Act unconstitutional

In two cases that could affect married same-sex couples in Iowa, federal Judge Joseph Tauro ruled Section 3 of the federal Defense of Marriage Act unconstitutional today, Lisa Keen reported for Bay Windows. Regarding Commonwealth of Massachusetts v. Health and Human Services,

Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Judge Tauro that Section 3 of DOMA — the section that limits the definition of marriage for federal benefits to straight couples — violates the state’s right under the federal constitution to sovereign authority to define and regulate the marital status of its residents. Healey called DOMA an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.”

Christopher Hall, representing HHS, said Congress should be able to control the meaning of terms, such as “marriage,” used in its own statutes, and should be able to control how federal money is allocated for federal benefits provided to persons based on their marital status. Tauro essentially replied that the government’s power is not unlimited.

The other case was Gill v. Office of Personnel Management, brought by Gay & Lesbian Advocates & Defenders (GLAD):

GLAD attorney Mary Bonauto told Tauro that DOMA constitutes a “classic equal protection” violation, by taking one class of married people in Massachusetts and dividing it into two. One class, she noted, gets federal benefits, the other does not. Just as the federal government cannot take the word “person” and say it means only Caucasians or only women, said Bonauto, it should not be able to take the word “marriage” and say it means only heterosexual couples. Bonauto said the government has no reason to withhold the more than 1,000 federal benefits of marriage from same-sex couples, and noted that a House Judiciary Committee report “explicitly stated the purpose of DOMA was to express moral disapproval of homosexuality.”

Keen notes that the plaintiffs in both cases asked the judge to apply a strict scrutiny standard, which “requires the government to come up with a fairly significant reason for treating gay couples differently under the law.” Judge Tauro found that Section 3 of DOMA fails even a “rational basis” standard, which is easier for the government to satisfy.

If today’s rulings are upheld by the First Circuit U.S. Appeals court or the U.S. Supreme Court, hundreds of Iowa couples married since April 2009 may be able to receive federal benefits.

UPDATE: Andrew Cohen, CBS News Radio Chief Legal Analyst and Legal Editor, is going through the rulings. He notes Judge Tauro held that Congress has no interest in uniform definition of marriage rights and that the federal government should have left marriage policy to the states. In addition, the judge determined that “facts upon which DOMA was based [are] now obsolete or at least overshadowed by more recent science on same-sex marriage-childrearing.”

SECOND UPDATE: Speaking of marriage equality, NBC has opened up a wedding contest to same-sex couples. Initially only heterosexual couples were eligible to enter.

THIRD UPDATE: The Constitutional Law Prof blog summarized Judge Tauro’s legal reasoning and posted links to pdf files of both rulings.

FOURTH UPDATE: Adam Bink discusses the debate in LGBT circles on whether it would be better or worse for the U.S. Department of Justice to appeal this ruling.

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