The language that the Justice Department used in its announcement and with the court is simply powerful. Read this excerpt from a statement by Attorney General Eric Holder:
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. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.Does this mean the end of DOMA? Towleroad's brilliant legal scholar Ari Ezra Waldman has once again provided us with thoughtful legal analysis of the this decision by the Justice Department. To be fully informed you should just click here and read Waldman's words in their entirety. However to the question "Is DOMA Dead?" he writes:
No, for a few reasons.
First, this is just the Administration stating its legal position. Even if the Administration was the only party arguing in these Second Circuit cases, the court does not have to adopt the Administration's opinion.
Second, the Administration will not be the only one defending DOMA. As you can see from the press release, the DOJ has notified members of Congress of the Administration's decision not to defend DOMA. Congressional leaders are permitted to step into the shoes of the DOJ to defend duly enacted federal laws passed by Congress. While Congress is split between majority Democrats in the Senate and majority Republicans in the House, it is likely that Republicans will seek to defend DOMA and argue before the Second Circuit that rational basis review is the appropriate standard of review.
Third, even if the Second Circuit accepts heightened scrutiny and declares DOMA unconstitutional, this will set up splits between the circuits on both the constitutionality of DOMA and on the appropriate standard of review. Therefore, these cases will likely go all the way up to the Supreme Court before there is a definitive and final judicial ruling on the constitutionality of DOMA. In fact, the Supreme Court may have to hear these cases twice, remanding the case for review based on a clear standard of review and, perhaps, hearing the cases again using that standardNo matter how you cut it the decision is an outstanding one by the administration. We have a long way to go but the President has given us new hope and reasons to celebrate this week. Right on, Mr. President.
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