Obama drops defense of DOMA!

[GAYtheist]

Please take the time to read this, this is a very exciting time for me, and gay people in general as it is one major step toward equality. I know it's long, but it is worth it.

From Associated Press:

Gov't drops defense of anti-gay marriage law
(AP) â€" 2 hours ago

WASHINGTON (AP) â€" In a major policy reversal, the Obama administration said Wednesday it will no longer defend the constitutionality of a federal law banning recognition of same-sex marriage.

Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman. He noted that the congressional debate during passage of the Defense of Marriage Act "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships â€" precisely the kind of stereotype-based thinking and animus" the Constitution is designed to guard against.

The Justice Department had defended the act in court until now.

The move quickly drew praise from some Democrats in Congress but a sharp response from the spokesman for Republican John Boehner, the House Speaker.

"While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation," said Boehner's spokesman Michael Steel.

Gay groups, which had long pressured the administration to take a step like this, were pleased. Ron Carey, executive director of the National Gay and Lesbian Task Force, called the policy change "a tremendous step toward recognizing our common humanity and ending an egregious injustice against thousands of loving, committed couples who simply want the protections, rights and responsibilities afforded other married couples. We thank the Obama administration."

Obama's move may position him politically at the forefront of rising public support for gay marriage. Polling results can vary rather significantly depending on what words are used to describe gay marriage, but there is a gradual trend in public opinion toward more acceptance of gay marriage.

An Associated Press-National Constitution Center Poll conducted last August found 52 percent of Americans saying the federal government should give legal recognition to marriages between couples of the same sex, while 46 percent said it should not. In polling by ABC News and the Washington Post, support for the legalization of gay marriage has climbed from 37 percent in 2003 to 47 percent in February 2010.

Holder's statement said, "Much of the legal landscape has changed in the 15 years since Congress passed" the Defense of Marriage Act. He noted that the Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional and that Congress has repealed the military's "don't ask, don't tell" policy.

At the White House, spokesman Jay Carney said Obama himself is still "grappling" with his personal view of gay marriage but has always personally opposed the Defense of Marriage Act as "unnecessary and unfair."

Boehner that Obama has concluded the Defense of Marriage Act fails to meet a rigorous standard under which courts view with suspicion any laws targeting minority groups who have suffered a history of discrimination.

The attorney general said the Justice Department had defended the law in court until now because the government was able to advance reasonable arguments for the law based on a less strict standard.

At a December news conference, in response to a reporters' question, Obama revealed that his position on gay marriage is "constantly evolving." He has opposed such marriages and supported instead civil unions for gay and lesbian couples. The president said such civil unions are his baseline â€" at this point, as he put it.

"This is something that we're going to continue to debate, and I personally am going to continue to wrestle with going forward," he said.

On Wednesday, Holder said the president has concluded that, given a documented history of discrimination against gays, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny than the department had been applying in legal challenges to the act up to now.

The attorney general said the department will immediately bring the policy change to the attention of two federal courts now hearing separate lawsuits targeting the Defense of Marriage Act.

One case, in Connecticut, challenges the federal government's denial of marriage-related protections for federal Family Medical Leave Act benefits, federal laws for private pension plans and federal laws concerning state pension plans. In the other case in New york City, the federal government refused to recognize the marriage of two women and taxed the inheritance that one of the women left to the other as though the two were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes.

Copyright © 2011 The Associated Press. All rights reserved.

[GAYtheist]

This came in part, to my understanding, due to a letter from the United States Attorney General to the Speaker of the House of Representatives, John Boehner:

The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC  20515
                Re:  Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.   Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision.  In particular, in November 2011, plaintiffs 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.  Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.).  Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.  As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation.  It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies:  (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.”  See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.  First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today.  Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.”  Lawrence v. Texas, 539 U.S. 558, 578 (2003).
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.”  Cleburne, 473 U.S. at 445.  And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.”  Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.”  Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality).  Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives.  See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.  We have carefully examined each of those decisions.  Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate â€" a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).  Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings.  And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny.  Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.  But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
        Application to Section 3 of DOMA  
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.”  Clark v. Jeter, 486 U.S. 456, 461 (1988).  Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.”  United States v. Virginia , 518 U.S. 515, 535-36 (1996).  â€œThe justification must be genuine, not hypothesized or invented post hoc in response to litigation.”  Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review.  Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.  The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships â€" precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.  See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, 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 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 Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut.  I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.  To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, 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.  This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.  
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.  However, the 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.  â€œ[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.”  Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).  This is the rare case where the proper course is to forgo the defense of this statute.  Moreover, the 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.  Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law.  If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.  Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.  We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011.  Please do not hesitate to contact us if you have any questions.
                                                        Sincerely yours,
Eric H. Holder, Jr.
Attorney General

[Sophus]

"While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation"

Says the party focusing on redefining rape, trying to criminalize abortions and bust unions. Oh well, great news from Obama, even though the Republicans never fail to disgust me.

[GAYtheist]

"While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation"

Says the party focusing on redefining rape, trying to criminalize abortions and bust unions. Oh well, great news from Obama, even though the Republicans never fail to disgust me.

Right? Really, thats all I can say...

[BadPoison]

"While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation"

Says the party focusing on redefining rape, trying to criminalize abortions and bust unions. Oh well, great news from Obama, even though the Republicans never fail to disgust me.

I was about to post the same thing  :brick:

[Sophus]

Apparently, Obama's decision isn't sitting perfectly well with some some supporters of gay rights because of its future implications. Professor of Law, Adam Winkler, wrote in his new article Why Obama Is Wrong on DOMA:

For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution's command that the president "shall take Care that the Laws be faithfully executed."

But now Obama has declared that if the president doesn't agree with a law--even if the courts say it's constitutional--he can choose not to defend it. This sets a terrible precedent that could well come back to haunt those who are cheering the president's decision. Don't be surprised if a President Palin points to Obama's decision when announcing her refusal to enforce and defend the landmark healthcare reform law because, in her view, the individual mandate is unconstitutional.

But then Glenn Greenwald makes some counterpoints here:

[youtube:1nhpbeu3]http://www.youtube.com/watch?v=cZ1LaWww_xA[/youtube:1nhpbeu3]

[ForTheLoveOfAll]

As much as I dislike Obama, I like this.

[Sophus]

But look who sweeps in to save the day! Could it be.... the GOP?  

Boehner-Led Group Will Defend DOMA In Court

Someone should ask Boehner how focusing on fighting gay rights helps anyone with jobs, jobs, jobs, since that's the only thing he claims to be about.

[GAYtheist]

But look who sweeps in to save the day! Could it be.... the GOP?  

Boehner-Led Group Will Defend DOMA In Court

Someone should ask Boehner how focusing on fighting gay rights helps anyone with jobs, jobs, jobs, since that's the only thing he claims to be about.

Considering that allowing gays to marry would most likely create tens of thousands to hundreds of thousands of jobs...per state.

[Stevil]

But the negative of the legislature would mean that the gay people would be gay.
Gay -
"-having or showing a merry, lively mood: gay spirits; gay music.
-given to or abounding in social or other pleasures: a gay social season."
http://dictionary.reference.com/browse/gay

And trying to improve that sentence with good grammer would mean we would have gay gay people, which sounds a bit odd.
Hmmm, hope they think long and hard about this tricky dilemma.

Actually, nah, finally common sense prevails. Gay people are people that are in love so why not celebrate and commemorate such a stance with marriage. Gay people are just people too, right?

[GAYtheist]

But the negative of the legislature would mean that the gay people would be gay.
Gay -
"-having or showing a merry, lively mood: gay spirits; gay music.
-given to or abounding in social or other pleasures: a gay social season."
http://dictionary.reference.com/browse/gay

And trying to improve that sentence with good grammer would mean we would have gay gay people, which sounds a bit odd.
Hmmm, hope they think long and hard about this tricky dilemma.

Actually, nah, finally common sense prevails. Gay people are people that are in love so why not celebrate and commemorate such a stance with marriage. Gay people are just people too, right?

...This. I love you.  

[Laser Sailor]

As much as I agree with the principal at stake, gay people have as much a right to marriage as anybody else. I don't think it's approprate for the executive branch to "decide" a law is unconstitutional (even though it clearly is).  I want to see DOMA repealed by the congress, or declared unconstitutional by the Supreme Court. I think it sets a dangerous precident, that Obama can, like a king or ruler, simply declare that a law is no longer in effect. We have a system in this country, the president is just one part of that system, he does not get to dictate on matters outside of his scope of responsiblity.

[Davin]

As much as I agree with the principal at stake, gay people have as much a right to marriage as anybody else. I don't think it's approprate for the executive branch to "decide" a law is unconstitutional (even though it clearly is).  I want to see DOMA repealed by the congress, or declared unconstitutional by the Supreme Court. I think it sets a dangerous precident, that Obama can, like a king or ruler, simply declare that a law is no longer in effect. We have a system in this country, the president is just one part of that system, he does not get to dictate on matters outside of his scope of responsiblity.

Obama is not dictating anything with this, he said his office will no longer support it. There is some kind of weird conversion going on for you. And while this is not the end game, it is a good step towards it.

[GAYtheist]

As much as I agree with the principal at stake, gay people have as much a right to marriage as anybody else. I don't think it's approprate for the executive branch to "decide" a law is unconstitutional (even though it clearly is).  I want to see DOMA repealed by the congress, or declared unconstitutional by the Supreme Court. I think it sets a dangerous precident, that Obama can, like a king or ruler, simply declare that a law is no longer in effect. We have a system in this country, the president is just one part of that system, he does not get to dictate on matters outside of his scope of responsiblity.

I have to wonder if you read the letter in its entirety. It clearly states that while President Obama does not agree to its constitutionality, and his refusal to have the DoJ defend the law, it will continue to be enforced in its entirety until such a time that a federal judge rules it unconstituional, or it is repealed by an act of congress.