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.

UPDATE! ETA 12:29 PST:

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.

Rachel is Autostraddle's Managing Editor and the editor who presides over news & politics coverage. 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 1129 articles for us.

62 Comments

  1. “So whatever, screw that guy.”
    Hehe.

    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.

  2. 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?

  3. 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.

  4. 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’.

  5. 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.

  6. Pingback: Score One For Gay Marriage, Zero For Maggie Gallagher And Anti-Gay Republicans | Marital Success Tips

  7. Pingback: New York State Doesn’t Just Allow Gay Marriage, It Opposes DOMA | Marital Success Tips

  8. Pingback: Autostraddle — Republicans Continue to Waste Time, Money, Energy, Our Patience on Upholding DOMA

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