Obama and Attorney General Holder Challenge DOMA
The Obama Administration has taken another progressive steps towards equality that has LGBT rights advocates feeling like a victory has been won. On February 23, 2011, President Obama declared Section 3 of DOMA [Defense of Marriage Act] unconstitutional and stated that the Department of Justice would no longer defend the statute in federal court in jurisdictions that have no precedent defending the act.
In a letter addressed to Speaker of the House, John A. Boehner, Attorney General Eric H. Holder Jr., he states that Section 3 of DOMA “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the (Constitution’s) Equal Protection Clause is designed to guard against.”
DOMA is being challenged in the Second Circuit Court of Appeals in the cases of Windsor v. United States in New York, Pedersen v. Office of Personnel Management in Connecticut and the earlier case of Gill v. Office of Personnel Management in Massachusetts. All cases address the federal government’s “denial of marriage-related protections in the areas of federal Family Medical Leave Act benefits, federal laws for private pension plans, federal laws concerning state pension plans”. In a letter addressed to the LGBT community during his election campaign, Obama wrote, “I support the complete repeal of the Defense of Marriage Act (DOMA) . . . Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does”.
The same claim was brought to Congress challenging DOMA Section 3 as discriminating to citizens and violating their fundamental rights and the letter by Attorney General Eric H. Holder Jr. denounces the Act as unconstitutional, even comparing it the fight for women’s rights. Specifically, DOMA Section 3 states: “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Holder lists the rationale for challenging DOMA; that it is a purposeful act of discrimination, holding that homosexuality is an ‘immutable characteristic’, in no way effecting an individuals’ ability to contribute positively to their society.
Holder and Obama focus on the need for a heightened standard of scrutiny when reviewing ‘classifications based on sexual orientation’ and argue that the Act clearly violates the Equal Protection Clause of the Fourteenth Amendment which reads, “No State shall deny to any person within its jurisdiction the equal protection of the laws”.
The letter addresses fundamental problems with the Act it does not outline a plan to repeal or alter it. The language of the letter is based upon stating facts rather than outlining a solution. There is much more to be done in order to create a sense of security among the LGBT community that same-sex marriages will be offered federal protection and share the same benefits as heterosexual couples.
Though there is much to rejoice over because of the challenge, DOMA is not yet dead. The letter from the Attorney General makes it clear that the Obama Administration is to enforce DOMA in its executive capacity as long as it exists and that it recognizes that the judiciary will be the final arbiter of the law. President Obama can state his feelings about DOMA, but the administration will have to continue to abide by the statue unless (or until) the judiciary itself makes the final determination.
Still, this is a momentous step for the LGBT Community in addressing federal discrimination. Attorney General Holder and President Obama have voiced resilience in defending the constitutional rights of all citizens and made the proposition that discrimination based on sexual orientation is wrong.
**Angela D. Giampolo, Principal of Giampolo Law Group maintains offices in both Pennsylvania and New Jersey and specializes in LGBT Law, Business Law, Real Estate Law and Civil Rights. Her website is www.giampololaw.com and she maintains blog www.phillygaylawyer.com. Please feel free to send Angela your legal questions at firstname.lastname@example.org.
“Doma Section 3 Challenge.” Gay and Lesbian Advocates & Defenders. GLAD, 10 Nov 2009. Web. 1 Mar 2011. <http://www.glad.org/doma/faq-pedersen/>.
Letter Addressed to Speaker of the House John A. Boehner, RE: Defense of Marriage Act. Wednesday, February 23, 2011.