Photo of a DOMA protest.
DOMA protesters are finally gaining some ground. CC by Michael_Lehet/Flickr

The Defense of Marriage Act, also called DOMA, will no longer be defended by the United States Department of Justice in court. DOMA was passed during the Clinton administration and basically says the federal government does not recognize any same sex marriage, regardless of whether it was legally performed. An ongoing discussion between the president and the Attorney General resulted in the conclusion that the law is unconstitutional.

DOMA unconstitutional, White House and Justice Department decide

Congress heard from the Attorney General Eric Holder recently regarding lawsuits concerning the Defense of Marriage Act, reports ABC. He said the Department of Justice won’t pursue any lawsuits that seek to validate the Defense of Marriage Act.

According to DOMA statutes, even if a same-sex marriage legally occurred, no territories or states in the United States have to recognize it. DOMA passed in 1996, and the Justice Department’s objection is not to the act in its entirety, but rather Section 3, which legally defines marriage as a union between a man and a woman as far as the government is concerned, meaning same sex marriages aren’t recognized. President Obama and Attorney General Holder have concluded Section 3 of DOMA is unconstitutional.

Looking closer

Because of the lawsuits Pedersen v. OPM and Windsor v. United States, the government had to decide whether to uphold DOMA. Both lawsuits challenge Section 3 on constitutional grounds. The New York Times reports the lawsuits are located in court districts that did not have previous homosexual marriage cases. The Justice Department reviewed those cases using the legal tests of “rational basis” and “heightened scrutiny.” The reason for a “rational basis” test is to see whether a law has a rational purpose based on constitutionally legal laws. A “heightened scrutiny” test is to determine whether an unconstitutional law serves a legitimate governmental purpose. The Justice Department and the White House concluded that no legitimate governmental purpose for banning same sex marriage exists and doing so was discriminatory, thus unconstitutional.

DOMA will continue to exist

DOMA lawsuits won’t be pursued by the Justice Department anymore., but the law hasn’t been repealed. President Obama has gone on record as saying that he believes DOMA is “flawed,” but he is constitutionally mandated to uphold the unconstitutional law, to a certain extent. However, to see if a law is worth defending in court, the president can order reviews of laws by appropriate parties. Those reviews are usually the domain of the Justice Department.



NY Times:

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