President Obama Finally Steps Up to the Plate on the Defense of Marriage Act

The LGBTQ community has been criticizing President Obama for his position on the Defense of Marriage Act for quite some time now, and it looks like the pressure may have finally gotten to him. President Obama told the Department of Justice that the Defense of Marriage Act, as applies to same-sex couples who are legally married under state law, violates the equal protection component of the fifth amendment, and should no longer be defended by the DOJ.

The Defense of Marriage Act is a horrifying piece of legislation that completely undermines the constitutional rights of gay and lesbian couples in the United States. It’s about damn time that the President stepped up to the plate and argued against the constitutionality of DOMA.

On a different but similar note, I’m sure Speaker Boehner really enjoyed opening this letter from Attorney General Eric H. Holder, Jr. this morning.

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.

About aj:
Andrew (AJ) is a vehement progressive, youth activist, and reproductive justice organizer. When he's not busy with the movement, you can usually find him dancing in the club or watching trashy reality tv.


  1. Isn’t this going to pose a problem, since it’s not the Executive Branch’s job to interpret the law? Don’t get me wrong, it’s time for DOMA to be on the way out. But by making an executive statement about the constitutionality of any law, Obama is subverting checks, balances, blah, blah, blah.

  2. Sure. I think it’s probably more of a symbolic gesture than anything. But I also think it’s a really important shift in Obama’s rhetoric on the issue.

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