By Christine Nicco/ TRT Online Reporter
WASHINGTON-Yesterday, the United States’ Attorney General sent a letter to Congressional leadership to inform them that the government will not defend DOMA in two recent lawsuits that challenge Section 3 of the legislation defining marriage between one man and one woman.
Although DOMA cannot be dismissed from the books just yet, this conclusion is favorable for same-sex married couples married under state law to possibly receive federal rights and protections as well.
Massachusetts Governor, Deval Patrick, issued a supportive statement about the Administration’s decision on the “unfair” law.
“I am tremendously heartened by President Obama’s decision to turn away from this divisive and unfair law. In Massachusetts, we believe that every person ought to be able to marry whomever they love, and we believe the rest of the country is moving forward in that direction, too.”
Massachusetts Attorney General, Martha Coakley, held a DOMA press conference yesterday. Her reaction to the news, as expected, was in favor of equal rights for all.
“[This] landmark decision is an important step toward achieving equality for all married couples in Massachusetts and assuring that all of our citizens enjoy the same rights and protections under our Constitution. It is unconstitutional for the federal government to discriminate, as it does because of DOMA’s restrictive definition of marriage. It is also unconstitutional for the federal government to decide who is married and to create a system of first-and second-class marriages. The federal government cannot require states, such as Massachusetts, to further the discrimination through federal programs. We are extremely pleased with Judge Tauro’s decision and we also want to congratulate GLAD for their well-earned victory on behalf of equality.”
The letter is detailed below.
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The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515
Re: Defense of Marriage Act
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.
