Equality is the Official Position of the United States Government

By letter to Speaker Boehner, Attorney General Eric Holder informed Congress that the executive branch will no longer defend the discriminatory Defense of Marriage Act, because, in the first case requiring Main Justice to take a stand on the issue, it is the determination of President Obama, and therefore of the Department of Justice, that gay men and women are of equal dignity, and entitled to the full protections of the Equal Protection Clause.

Two points. First, to answer some conservative criticisms I’ve heard, the President isn’t “declaring” a law unconstitutional. He’s stating his opinion on its validity, and therefore directing the Department of Justice, in his role as the head of the executive branch, to enforce the laws. As my friend Dean (hi Dean!) just pointed out to me by self-righteous phone call, the President is entitled and indeed expected to have an independent constitutional vision, which he can articulate by vetoing legislation, directing its enforcement or non-enforcement under the Take Care clause and, yes, by requesting the Department of Justice direct its limited resources in conformity with the law, as it is and as it should be. Right- and left-leaning legal scholars all agree on this point, and the position, which I expect we’ll hear from the Conservapedias of the world, that the President can’t “declare laws unconstitutional,” therefore lacks merit.

Second, others have noted some limitations in this directive. Nondefense of DoMA § 3 appears to leave § 2, permitting states to fail to recognize foreign marriages, effective. But the administration’s articulated position sweeps broader. General Holder speaks not just to DoMA § 3, but to the applicable standard of review when deciding an equal protection case impacting gay rights. As he says, “classifications based on sexual orientation warrant heightened scrutiny.” This position, if argued and accepted in court, compels the fall of the entire statute, and of any state-law limitation on gay marriage. True, gay rights can still be circumscribed under rational basis review, but not really.

Effective this afternoon, we’re living in a new world. The battle duly fought and won, all that’s left is to carry the government’s position into legal effect, which will require answering some fairly tough and interesting legal questions. We’ll be there to help.

By the way, this is why you elect Democratic presidents. Considering staying home on Election Day 2012? Don’t.  We have something big to fight for now.


  1. Curious – what else can the President do beyond this action to advance gay rights? Isn’t this sort of the last round in his gun?

  2. Fom Orin Kerr at The Atlantic:

    “If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.”

    From Jason Kuznicki at The League of Ordinary Gentlemen:

    “Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in the next big school prayer case? Or the next big abortion case? Or on Obamacare itself?”


  3. This is an interesting enough issue that it requires its own post, forthcoming :)

    1. My big concern is that the President has taken a completely passive role at this point. He’s not defending the law but he’s also not pressing for it to be overturned by Congress. Maybe he likes the idea of the courts doing it for multiple reasons but I think if he really finds the law problematic he should be doing more.

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