In a shocking about face, the Obama administration announced Wednesday morning that it believes Section 3 of the 1996 Defense of Marriage Act (DOMA) to be unconstitutional and has ordered the Justice Department to stop defending the law.
Section 3 is the specific clause that prohibits the federal government from recognizing same-sex marriages. In a press release announcing the change, U.S. Attorney General Eric Holder further argues that laws regarding sexual orientation should be subject to a higher level of review:
Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.
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.
Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.
As recently as last October, the Obama administration announced its intention to stand behind DOMA and in January of this year filed a brief arguing that “DOMA is rationally related to legitimate governmental interests.”
Once again, the president demonstrates a weakness that his plagued his stewardship almost since his first day in office—namely, taking a firm, immutable stance with respect to a topic on which there is sharp political division. In this case, his decision (if in fact it is final!) could prove costly. A Gallup poll from last May shows 53% of Americans opposing same-sex marriage while 44% favor it. The president has also initiated yet another battle between the federal government and the states, 35 of which currently have laws on the books prohibiting same-sex marriage.