Motley Moose – Archive

Since 2008 – Progress Through Politics


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.

Attorney General Eric Holder

While this decision has admittedly taken longer than many would have liked…it is nonetheless a decision that ought be applauded.

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

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   Congress has repealed the military’s Don’t Ask, Don’t Tell policy.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?


  1. Kysen

    Can you imagine where we would be if McCain were President?

    Today, for me, is yet another reminder of how pleased I am to have Obama at the helm.

    (Kysen = Obot!!)

  2. jsfox

    Heads are exploding in the Republican Party.

    Lamar Smith head of the House judiciary committee is not pleased 🙂


    Boehner through his spox had the gall to say at a time when we should be focusing on jobs we shouldn’t get distracted by DOMA. Someone want to remind me exactly when the House Republicans have discussed or brought  up a bill that might create a single job.


  3. sricki

    I am bumping this back up top, and would like for it to stay there at LEAST for the rest of tonight if not also for part of tomorrow morning. I feel obliged to “explain myself” so to speak since Blasky just posted an open thread.

    I sympathize greatly with the enthusiasm for revolutions elsewhere. However, this diary was just posted, and it is not an issue to be taken lightly either. Whether it gets many comments or not, I think it needs to sit at the top of the FP for a while. DOMA being struck down is a big deal. It is yet another blow against institutionalized bigotry, and a rather sizable effort in our own (admittedly agonizingly slow and far less drastic) revolution. It is a great step forward in the battle for gay rights, and in my opinion it deserves our attention front and center for at least a few more hours.

  4. HappyinVT

    GLAD’s [Lee] Swislow said that part of the reason their case was filed in the Second Circuit because there wasn’t a binding precedent there.

    “We were very interested in filing a case in which it was ‘clean’ in terms of any statements about the level of scrutiny [for allegations of discrimination against gay and lesbian Americans], so that was definitely part of our strategy,” Swislow said.

    Still, Swislow said they were “surprised” to get the letter.

    “We have been arguing for years that we think discrimination based on sexual orientation should be subject to heightened scrutiny, and we’re certainly happy that the Justice Department agreed with that position,” Swislow said.


    According to the article no one seems all that clear on who in Congress, individually or as a chamber, would defend DOMA.

    Is it too much to hope Congress will give up?  Please?

  5. HappyinVT

    Ted Olson, lead attorney for the lawsuit challenging California’s same-sex marriage ban announced Wednesday that he is asking the 9th Circuit U.S. Court of Appeals to lift a stay on a district court ruling that found Proposition 8 unconstitutional.

    The request, if granted, would enable same-sex couples to marry immediately.


    “We’re going on almost a year since it was held unconstitutional,” noted Boies, referring to the August 4, 2010, ruling by U.S. District Court Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional.

    Olson said he and co-counsel David Boies are “very gratified by the developments today from the Department of Justice,” but did not make clear whether the request to lift the stay on the California ruling was triggered by the DOJ statement. However, he clearly feels the DOJ announcement enhances the possibility the 9th Circuit might consider lifting the stay.

  6. jsfox

    By all conventional analysis, this decision by the Obama administration represents a risky and courageous act. Although the numbers have been steadily ticking upward, a majority of Americans have never polled in favor of same sex marriage. And according to Pew, nearly 70 percent of white Republicans — which is to say, almost all Republicans — oppose it. Thus, the Republicans who run Congress may now be tempted to follow the administration’s subtle suggestion in its Wednesday announcement that Congress should act to defend DOMA in court itself if it disagrees with this move.

    That would be a mistake. True, the latest Pew poll shows that 48 percent of Americans oppose same sex marriage, while only 42 percent favor it. Defending the exclusionary law in court, however, is something very different from braying about it on talk radio.

    The defenders of California’s Proposition 8, who rushed in when that state’s governor and attorney general refused the job, learned this lesson in a federal case last year, when their arguments and witnesses were utterly dismantled by the all-star legal team of David Boies and Ted Olson.

    It is worth your time to read the entire article.

    I am loath to say Obama is playing three dimensional chess, but  . . .  

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