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.Note, however, that this directive does not stop the Administration from continuing to enforce the law administratively. They just won't be defending it in court. AG Holder has also given members of Congress the option to defend the law if they so choose (and we know some will).
Still, this is a big effing deal. DOMA is unconstitutional on several fronts - not only does it deny a citizen's basic civil right to marry the person they love, it also tramples on the rights of the state that do recognize marriage equality. It basically states that the Constitution and its full faith and credit clause. You know, this one:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.Yes, constitutional "originalists," this protects states that happen to actually believe in equality too, and not just states that use it to deny their citizens rights. We finally have a President and a DOJ that seems to understand it. We finally have a President who is a Constitutional scholar who understands that it is a document to protect and expand the rights of people, not to contract and restrict them. I am frankly elated, and I think DOMA's days are numbered. Not only is the legal community catching up to the contradiction between a nation that claims to provide equal justice under law and then turns around and writes discrimination against LGBT Americans into its own laws, the popular opinion is also changing. Let's keep it going!
Reactions from our quarter of politics has, of course, been positive. Barney Frank:
"It's great news," Frank, who is openly gay, told TPM over the phone. "Particularly after DADT repeal, this is a further expression of his commitment to doing away with discrimination."The Human Rights Campaign praised the move as rare and extraordinary:
“This is a monumental decision for the thousands of same-sex couples and their families who want nothing more than the same rights and dignity afforded to other married couples,” said HRC President Joe Solmonese. “As the President has stated previously, DOMA unfairly discriminates against Americans and we applaud him for fulfilling his oath to defend critical constitutional principles.”The National Gay and Lesbian Task Force:
Gay groups, which had long pressured the administration to take a step like this, were pleased. Ron Carey, executive director of the National Gay and Lesbian Task Force, called the policy change "a tremendous step toward recognizing our common humanity and ending an egregious injustice against thousands of loving, committed couples who simply want the protections, rights and responsibilities afforded other married couples. We thank the Obama administration."I'm breaking open a proverbial bottle of champaign!