Obama Administration is Over DOMA (UPDATED: Sen. Feinstein Will Now Introduce DOMA Repeal Legislation!)

President Barack Obama has decided that he will no longer defend Section 3 of the Defense of Marriage Act against constitutional challenges. In addition, it is his recommendation, based on an understanding of queer people’s historical oppression and experience of discrimination, the classification of sexual orientation should be looked at with heightened scrutiny (a term that our legal beagle explains at length in our Prop 8 Gay Marriage Trial Explained: How Do We Win This Thing?) That’s actually a ton of extremely important and beneficial political change wrapped up in two sentences, so we’ll break it down further for you. Let’s start with DOMA.

Section 3 of DOMA is the part that prohibits the federal government from recognizing same-sex marriage. It was signed into law by Bill Clinton, who we thought was our friend, but apparently was not.

DOMA prevents couples living in states where they can be legally married from getting federal benefits or having their marriage recognized for tax purposes. Obama’s change of position means that the Department of Justice will not defend the constitutionality of Section 3 in the ongoing cases Pedersen v. OPM and Windsor v. United States.

This decision came seemingly out of nowhere. To the best of our knowledge, not even Obama’s staunchest supporters thought this announcement would be made as early as today. Many less optimistic activists didn’t trust Obama to make this move at all before the end of his presidency. The president has always maintained that he wants to see DOMA end, but until today the Department of Justice has continued to defend its existence in court on the basis that it could still advance rational arguments for its continued existence.

Here’s Attorney General Eric Holder’s statement about that:

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 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.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. 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. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

The two cases immediately affected by this policy, Pedersen and Windsor, are actually what allowed Obama the opportunity to make this statement, which brings us to the issue of intermediate scrutiny. The cases are both in the Second Circuit of the federal court system. As explained by the AG in the letter to Congress, the Second Circuit has no set standard for how to review classifications based on sexuality. Every other DOMA case that Obama has defended happened in other circuits that use a standard of rational basis review for sexuality. This was the first opportunity Obama has had to voice his own opinion on the appropriate standard. He thinks that intermediate scrutiny should apply, and he doesn’t think the arguments in favor of DOMA are good enough to survive intermediate scrutiny, thus he won’t make them in court.

Keep in mind, no court has ruled that sexuality should get intermediate scrutiny. This is simply Obama policing himself, which is good in that it will result in more favorable verdicts for those of us fighting against DOMA. But this does not set up any precedent for how to treat sexuality in the future, say for example in cases about same-sex marriage. The president’s view is excellent persuasive evidence that may shape this debate in the future, but it doesn’t have any binding effect on courts.

Ultimately, the lawsuits brought by brave souls against the federal government are what brought us where we are today. Of course, the battle is far from over. As the Attorney General notes, Section 3 will remain in effect until Congress actually repeals it, and there’s still plenty of legislature on the books that makes life difficult for same-sex couples who want to live a happily married life.

But this is still an extraordinary moment in history. The past few weeks have seen people all over the world sacrificing incredible amounts for small steps towards freedom from oppression, and from Wisconsin to Libya we are awestruck at the tenacity and courage of the average citizen when the basic rights of a community to freedom from harm and persecution are at stake. This is a victory for gay people in America, but also for the fundamental principles of democracy and human decency. It deserves to be celebrated, and so do we for being part of it.


In the wake of this historical news, Senator Dianne Feinstein, D-California, a senior member of the Judiciary Committe, has announced that she will introduce legislation to repeal the federal Defense of Marriage Act (DOMA)!

Feinstein says: “My own belief is that when two people love each other and enter the contract of marriage, the Federal government should honor that. I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now; and it should be repealed.”

Republican Senator Jim DeMint says:

“It’s increasingly obvious this President cares little about the Constitution, but cares deeply about pandering to liberal interest groups. Traditional marriage is the foundation of America’s culture, and the President’s refusal to defend marriage undermines our nation’s strength. The Defense of Marriage Act is the law of the land and the President’s administration hasn’t challenged its constitutionality for two years. It’s only in the run-up to reelection that he’s suddenly changed his mind. If the President is seriously concerned about unconstitutional laws, he should abandon his defense of the health care bill.”

So whatever, screw that guy.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


    • I’m just going to need a few clarifications.

      How does a heart orgasm? How do two hearts do it? I mean, if both of them have an aorta and there’s no main vein in sight…? I know they say we can’t legislate what goes on in their chambers. Should I talk to my cardiologist about this shit?!I don’t know how to handle it when my thumper becomes a humper.

  1. “(If you need a rundown on how scrutiny works for race, gender, and sexuality, see this article about Proposition 8.)”

    Um, I would like that run down please. Link?

    Also: yay, and thanks for publishing this!!

  2. I have two burning questions on this, and I can’t seem to find the answer online anywhere. Does anyone have the legal background to answer them?

    1. Does this mean that the two cases percolating through the lower courts will make it to the Supreme Court faster? (As in, if the DoJ doesn’t mount a defense, does that speed everything up?)

    2. It says that Congress can still choose to defend the constitutionality of DoMA. How does this work? Who in the Congress gets to decide whether they actually do this?

    • I’m pretty sure that if the DoJ doesn’t mount a defense then there isn’t much of a case. This is why the prop 8 case being fought in federal court is sort of up in the air….it is unclear whether or not there is anyone who can stand as the defendant in the trial.

      As for your second question, I don’t know how exactly to answer that. The Congress can defend the statute and there is technically a pending case for them to decide to do so. Whether or not this happens is going to be up to them. Essentially we don’t know how this process works because it is not often used. Here is a pretty decent article about it.


      Either way, it’s awesome that Obama finally took a stance. It might mean I have a little less to study when law school comes around next year, but I think I can find a new cause. :)

      • Let me clarify a little further. (Possibly more clarification than anyone wants).

        If the DOJ doesn’t mount a defense of Section 3 of DOMA, it doesn’t really speed the case up. It means there is no case, as wackyjack mentions, unless someone else (like Congress) has standing.

        The standing issue is relevant in both Prop 8 and the DOMA cases, but it’s a different issue depending on the relevant law. Even though both the DOMA cases and the Prop 8 trials are in federal court, the DOJ is only involved with the DOMA cases, because a federal statute is at issue. Since Prop 8 is just a state law, the DOJ is not involved.

        The California Supreme Court is currently deciding whether anyone has standing in the Prop 8 trial. But regardless of what the California Supreme Court decides, this will not affect the DOMA cases, and Congress’ ability to defend DOMA will not affect the Prop 8 trial.

        • You guys are great, you legal people you. Thanks for helping the rest of us out! :)

          So this seems like the place to ask the questions I’ve been turning over in my head today. This seems related to what Abby was asking, so I’m sorry if I’m repeating things a little.

          I’m having trouble wrapping my head around the fact that Obama can sit down with Eric Holder and decide what they think is constitutional and whether they’re going to defend it. Now, I do get that they still have to enforce it, and obviously (since I’m here) I’m super happy that DOMA is on its slow way out, but how does that work? More importantly, how does it work if a president we like less is in office, and decides something similar about something we like?

          I’m getting that it’s got something to do with whether gay people are a protected class or not, and I totes agree with the outcome, but again, I don’t see how Obama and Holder get to decide that, or how it matters in whether they have to defend DOMA or not. You know? Am I just missing something?

          I live in California, so I know that Schwarzenegger personally didn’t want to defend Prop 8 — NOM & cronies took care of that — but his name was still listed in the case (Perry v. Schwarzenegger). Is this related to all this “who needs to defend what” business?

          If this is long and complicated and there’s a good explanation of it on the internet, definitely send me there — but I’ve been looking and not finding much that’s been helpful. Thanks guys!

          • I’m also just going to add in here that although I do live in California right now, I’m from Canada — so maybe there are some basic things about what the executive branch’s role in these sorts of things are that I don’t quite understand yet. I’m still learning about this strange southern land! :)

          • You’re pretty much asking a seperation of powers question. Obama and Holder can make decisions on behalf of the Executive branch. The Executive does not have to defend any position in court but they are supposed to continue to enforce the law in the meantime, even if they think they are stupid/unconstitutional/immoral. Big but they don’t always do that, (see civil rights of blacks pre MLK [ its Black History Month!]). So you’re right, an asshole in power can potentially screw us until we get him/her out of office or make them play nice…

            The Exec’s position however does not stop other parties with standing from mounting a defense or other concerned groups from offering amicus briefs with their two-cents. but the courts are not obligated to consider anybody but the actual parties to the suit. In Perry, although the state declined, other groups petitioned the court to be joined in the suit and were allowed by the courts to intervene.

            …and thats some seperation of powers plus some civil procedure at the end. enjoy.

          • Thanks khadija — that’s exactly what I was looking for! I feel a bit more confident that I get what’s going on now.

          • To add onto what khadija said, the executive has a lot more leeway to interpret constitutional issues. This is debated, but some people think that if the president believes a law is unconstitutional, he doesn’t have to enforce it. It doesn’t work quite that way if he doesn’t like the law but has no constitutional basis to object.

            It’s also worth noting that your concern about what happens if an asshole is in power is exactly why Obama defended DOMA in the past. He didn’t want to create precedent for the executive to do whatever the hell he wants. Giving Obama free reign is one thing, but we would regret it when a less gay-friendly president comes along. That’s why I personally have never taken much issue with his defenses of DOMA in court. I figured he didn’t really believe it, which he’s proven here.

  3. This is amazingly exciting, and renews my faith in Obama. Hopefully it will with do the same for other queer voters in time for the next presidential election. Also, I did not know Clinton signed DOMA- how sad, I’ve always have beaucoup Bill love.

  4. I heard the news earlier today, but I’m still in shock that they said they aren’t going to defend DOMA anymore

    • Just Section 3. There are some other nasty bits that they have yet to address. But it’s a good start :-)

  5. I’m glad I read the update first, because that DeMint quotation MADE ME SO ANGRY (not like it’s surprising at all) but then going back and reading this made me feel better: “This is a victory for gay people in America, but also for the fundamental principles of democracy and human decency. It deserves to be celebrated, and so do we for being part of it.” Lovely lovely lovely.

  6. We need to repeal DOMA asap,and legalise Gay marriage, because I WANT TO MARRY KATE MOENNING NOW! And no one, not even the government, will stop me from being legally able to have amazingly sexy babies with Katherine Moenning.

    • I could be wrong on this, but I presume he means

      1) A Supreme Court ruling striking it down
      2) A Circuit Court ruling striking it down, followed by the Supreme Court’s decision not to hear the case.

      Basically, at the moment DOMA has just been declared unconstitutional by a couple of District Court judges, but they can still be appealed. I think he means that it will continue to be enforced until there is a ruling deeming it unconstitutional, in a case where there is no room for further appeal.

  7. “Traditional marriage is the foundation of America’s culture”

    Do I need to remind him of Franklin and Jefferson’s sexual history? Or maybe the rumor about Lincoln being gay (whether I believe it or not)? Because it seems like I do. “Traditional marriage” my ass.

    Anyway, I’m going to focus on the good news and I’m hopeful that this is the beginning of the end of marriage discrimination. My partner and I have been looking up how to get married in one state and live in another, with all the restrictions and name change complications and everything, and it makes me feel gross. So hopefully that’ll all change sooner rather than later and we can be treated like *gasp* normal people!

  8. Like, the non-cynical-sometimes-the-right-thing-happens-like-on-The-West-Wing part of me really, really, really wants this to be legit.
    But does this feel weird to anyone else? Like this could just be a desperate, pandering move in what will certainly be the re-election campaign from hell?
    I don’t know :/

    • yes it does feel a little “hey i’m going to need votes again so all you gays who supported me whole heartedly then were a little disapointed in my lack of action….look look i did something for you”
      if that is the case- i’ll take it. and say thank you.
      regardless of the motives (which politicians always have) this is a good thing

  9. Jim DeMint is totally right, our country’s culture wasn’t founded on the ideas of freedom, ambition, and equality, it was founded solely on traditional marriage. How could I have missed that? I should really go reread the Constitution, Declaration of Independence, Emancipation Proclamation, Civil Rights Act…

  10. Let’s be honest. Politics is a dirty game. I for one am a huge Obama supporter. I think he is doing a really good job of keeping his word on his campaign promises. Many people are critical of the timeline, but if he were to have drastically changed the government as soon as he took office, his critics would be calling him a dictator and would be making outlandish comparisons to him and (insert notorious dictator). Thus making it that much more likely to have everything redone if he should not be reelected. It’s better that the politicians, who aren’t crazy, i.e. tea party, are making these decisions because that means they are realizing that us gays are actually human beings with real feelings and emotions. Otherwise, it would seem like more of a political agenda to change the government and heads would explode. However, it is also necessary for Obama to occasionally put his foot down and say enough is enough, like now. Go Obama!

    • Maybe…Gobama?

      Eh? Eh? Nothin? …Sigh..okay..
      Good comment, very well put. I totally agree with it especially the beginning about what would have happened if he had started drastically changing things right at the begining.

  11. “So whatever, screw that guy.”

    This whole artical made me go WOOOOOOOOOOOOOOOOOOOO!
    Twas so much excitement in Lauren’s world. The steps being taken in this short amount of time are just astounding. As a 17 year old at a public school, these things aren’t often brought up…except by me. Hip hip hooray, my American Studies class will be treated to another The Big Gay News segement by Lauren.
    Thanks ladies for keeping me informed.

  12. We’re one step closer to equality, and it feels so good. I knew Obama would come back around for us… Maybe he is scared of losing the next election because of write in votes for Lady Gaga?

  13. It’s funny how no matter where you are in the world the anti-equality brigade always use the same tired old excuses for denying us our rights….it’ll ruin traditional marriage, the bible and jebus say no, wont someone think of the children, there is no such thing as gayness….etc etc On Friday we will elect a new government here and the party that will win dont want to give us our full rights, and the equality spokesperson for the party said that she didnt believe that gays should be allow marry because marriage should be about procreation only in order to ensure the survival of the human race (!)…so what im saying in a roundabout way is that no matter where you are we all have a sometimes similar but always difficult fight on our hands, good luck to everyone else pushing for equality, eventually they’ll relent and realise we’re not the abnormal monsters they claim us to be, and that we’re just human beings deserving of the same rights as them. Keep up the good work!

    • “the equality spokesperson for the party said that she didnt believe that gays should be allow marry because marriage should be about procreation only in order to ensure the survival of the human race (!)”
      … seriously? SRSLY? What about straight couples who want to get married but don’t want to have kids, or can’t have kids? Sorry, fuck off guys, this shit is for procreators only! I can see that going over real well.

  14. The Atlantic has an article up on 10 Takeaways From Obama’s DOMA Reversal http://bit.ly/efSU4s It’s high-level points, but it teases apart the pieces.

    My favorite? “9. With the Justice Department backing away from the fight, it will be interesting to read the arguments defending the Marriage Act made by its supporters in Congress. The very same folks who are decrying Congressional power to regulate the purchase of health insurance will be decrying the lack of Congressional authority to regulate marriage. Just sayin’.”

    Yeah, just sayin’.

  15. why do i feel like michelle obama has something to do with his sudden ill will towards DOMA?

    like she traveled to a couple of awesome cities (like ny) and went around talking to people about health and family…and did her thing!
    she shook hands and smiled…and talked to the people.

    i bet she came home and was like “Barry, you need to get up there and defend the gays. They voted for you and need your help. Besides, DOMA fucking sucks and you know it.”

    or something along those lines :)

    i just feel her energy all over this.

  16. Obama seems to be doing all sorts of awesome sexy shit for the American people. Shame about his foreign policy tho.

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