Wednesday, February 23, 2011

DOMA Grows Weaker

I just heard about this and thought I'd share it with others. Apparently, today, Obama ordered the Department of Justice to stop defending section 3 of the Defense of Marriage Act (DOMA) in their litigation. The following is a link to an article describing the transition: ... tml?r=news

This came about due to the DoJ's defense of DOMA in two cases where plaintiffs claimed DOMA unconstitutional. The two cases, unlike previous cases, were in jurisdictions where there was no prior judicial decisions regarding whether sexual orientation, as a class, was subject to a heightened scrutiny. In previous cases, it was judicially pre-determined that sexual orientation was subject to the least rigorous form of judicial review, rational basis. This meant that the DoJ never had to actively engage itself in a legal battle of whether sexual orientation was suspect class (given heightened scrutiny) or not (where it would receive rational basis). However, with these two cases currently pending, the DoJ actually has to argue the issue of how to classify the class of sexual orientation. It is this added piece that has led to the DoJ's stance on DOMA.

One thing the article mentions, which is worth mentioning here, is that the DoJ, while it will stop defending the law in court, will continue to enforce DOMA out of respect for the previous Congress that voted yes to this abortion of a law. It will not stop enforcing the law until Congress repeals it or the SCOTUS declares it unconstitutional.

Honestly, I don't really know what the above distinction means. It certainly is a good thing to have the White House declaring DOMA section 3 unconstitutional and will, therefore, stop defending it. Whether this amounts to anything due to the "enforcement" language is something yet to be seen.

One last thing, this declaration regards DOMA section 3, which is the provision stating that marriage, for federal government purposes, is only between a man and a woman. The other major provision of DOMA, section 2, states that no state has an obligation under the Full Faith and Credit Clause to recognize the same-sex marriages of other states.

No comments:

Post a Comment