President Obama has declared the DOMA unconstitutional and ordered Eric Holder and the DOJ to cease and desist in their legal defenses of it.
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.
While this decision has admittedly taken longer than many would have liked…it is nonetheless a decision that ought be applauded.
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 Congress has repealed the military’s Don’t Ask, Don’t Tell policy.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.
While Congress and other legal entities may yet attempt to defend DOMA and push further court actions…and while SOME courts may decide to uphold their arguments…the action taken today by Obama and the DOJ should be the first SOLID steps towards a complete repeal of DOMA.
The fight is far from over…but, a solid blow has been dealt against the unfair (and UNCONSTITUTIONAL) law.
So, as the saying goes (I think)..the wheels of justice grind slowly—but they grind very finely. Slowly but surely we are moving towards equality in Marriage. To be honest, even a decade ago I did not think we would have progressed as far as we have…I hope to be saying the same a decade from now.
Perhaps some more legally minded Mooses could provide a more in-depth review of where things stand now.
What say ye, Moose?