Justice Department won't back Defense of Marriage Act

The Justice Department has announced it won’t defend the Defense of Marriage Act, or DOMA, in the courtroom. Legislation isn’t repealed, but it just definitely won’t be defended anymore. Same sex marriage at the federal level is governed by Defense of Marriage Act, which states the federal government doesn’t recognize homosexual marriages. The Attorney General and the President had to reach a conclusion about the law due to pending lawsuits regarding it. The conclusion was the law was unconstitutional.

Defense of Marriage Act unconstitutional according to Justice Department and White House

The Attorney General has informed Congress that the Department of Justice will not any longer pursue any lawsuits related to the Defense of Marriage Act, or DOMA, according to the ABC. In 1996, Defense of Marriage Act was passed into law. It states that states and territories of the United States never have to recognize a same-sex marriage even if it was done legally in another state. The objection is not to the act itself, but rather Section 3 of Defense of Marriage Act, which legally defines marriage as a union between a man and a woman as far as the government is concerned. Attorney General Holder, consulting with President Obama, decided that Section 3 of DOMA is unconstitutional.

Searching closer

Because of the lawsuits Pedersen v. OPM and Windsor v. United States, DOMA was something the government had to choose to uphold or not. Due to constitutional grounds, both lawsuits challenge Section 3. The New York Times reports that they are being done in the courtroom districts that did not have previous homosexual marriage cases. Using "rational basis" and "heightened scrutiny," the Justice Department reviewed both cases. A “rational basis” test is to determine whether a constitutionally legal law serves no logical purpose. A “heightened scrutiny” test is to determine whether an unconstitutional law serves a legitimate governmental purpose. The Justice Department and the White House decided that no legitimate governmental purpose for banning homosexual marriage exists and doing this was discriminatory, thus unconstitutional.

Have not beaten out DOMA yet

The DOMA law hasn't been repealed even though the Justice Department refuses to pursue any more lawsuits. The DOMA, including Section 3, remains in effect for the moment. Obama has gone on record as saying that he believes it is “flawed,” but he is constitutionally mandated to uphold legislation, to a certain extent. In order to see if legislation is worth defending in court, the president can make orders. This would be to the Justice Department.

Articles cited

ABC

blogs.abcnews.com/politicalpunch/2011/02/president-obama-instructs-justice-department-to-stop-defending-defense-of-marriage-act-calls-clinton.html

NY Times

nytimes.com/2011/02/24/us/24marriage.html

Justice.gov

justice.gov/opa/pr/2011/February/11-ag-223.html