The United States Department of Justice has announced that it will no longer defend the Defense of Marriage Act (DOMA) in court. DOMA, passed during the Clinton administration, established that the federal government didn’t have to recognize a same sex marriage. The Attorney General and the president have both concluded that the law is unconstitutional.
White House and Justice Department declare DOMA unconstitutional
The Attorney General has informed Congress that the Department of Justice will no longer pursue any lawsuits related to the Defense of Marriage Act, or DOMA, according to the ABC. DOMA, passed in 1996, mandates that states and territories of the United States do not have to recognize a same-sex marriage, regardless of whether the same-sex marriage was legally executed. The objection is not to the act itself, but rather Section 3 of DOMA, 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, concluded that Section 3 of DOMA is unconstitutional.
Question of scrutiny
The government had to decide whether to uphold DOMA because of two pending lawsuits, Pedersen v. OPM and Windsor v. United States. Both challenge Section 3 on constitutional grounds in court districts that lack previous cases regarding homosexual marriage, according to the New York Times. The Justice Department reviewed those cases using the legal tests of “rational basis” and “heightened scrutiny.” A “rational basis” test is to determine whether a constitutionally legal law serves no rational purpose. 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 still stands
The Justice Department has declined to pursue any further lawsuits regarding DOMA, though that does not mean that the law has been repealed. The Defense of Marriage Act, including Section 3, remains in effect for the time being. President Obama has gone on record as saying that he believes it is “flawed,” but he is constitutionally mandated to uphold the law, to a certain extent. However, the president can order reviews by the Justice Department to see whether defending laws in court is worth the effort.