United States Justice Department’s Decision
Not to Defend DOMA

Legal Director John Lewis

(Updated 6 July 2012)

On 23 February 2011, the United States Department of Justice announced that it will no longer defend DOMA in court.   The Justice Department has applied this decision to all cases relating to DOMA, including those brought by members of the military and veterans.  The decision is a major step forward for marriage equality.  In all DOMA cases, the United States government is now arguing on behalf of lesbian and gay people that laws that treat them differently from everyone else are subject to “heightened scrutiny” under the Constitution and that DOMA is unconstitutional.

The Justice Department’s decision arose out of the Gill, Pedersen, and Windsor cases (discussed on our Federal Cases Challenging DOMA page).  These cases, like the subsequently filed DOMA cases, allege that section 3 of DOMA violates the US Constitution’s Equal Protection clause because it treats legally married gay and lesbian couples differently from legally married heterosexual couples.

An important issue in deciding the DOMA cases is the standard of review the courts should apply to determine whether DOMA violates the Constitution.  The courts could apply a more lenient “rational basis” test (which is much easier for a law to pass) or a heightened level of scrutiny (which is much more difficult to pass).

The First Circuit, where the Gill case was pending in February 2011, had previously decided that laws regarding sexual orientation need only satisfy the “rational basis” test, and the federal government had argued in Gill that DOMA satisfies this test.

The Justice Department decided to change its position in all the DOMA cases because of the situation it found itself in briefing the Pedersen and Windsor cases, before the Second Circuit.  Unlike the First Circuit, the Second Circuit has not yet decided the proper standard of review to apply to cases in that circuit.  Accordingly, the Department of Justice in filing its response to these lawsuits considered itself forced to take a position on the proper standard of review for laws that discriminate against lesbian and gay people.

The Justice Department concluded that laws that discriminate against lesbian and gay people should be subject to “heightened scrutiny,” and that Section 3 of DOMA could not satisfy this test. Therefore, the Justice Department decided not to defend Section 3 of DOMA in the Pedersen and Windsor cases, and consequently, they would no longer defend section 3 in any of the other federal cases, including Gill.  

In making this decision, the Justice Department recognized four basic facts (summarized in our words here) that are critical to the standard of review analysis:

1.  There is a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, half the states demeaned the very existence of gays and lesbians by making their private sexual conduct a crime.  The Supreme Court ruled those laws unconstitutional in July 2003 -- just 9 years ago.

 2.  The passage of numerous statewide initiatives hurting the rights of lesbian and gay people, the passage of harmful federal laws such as Don’t Ask, Don’t Tell and the so-called Defense of Marriage Act, and the lack of federal legislation to protect against employment discrimination show that lesbian and gay folks do not have the political power to protect themselves in the legislative arena without protection of the courts.

3.  Scientific consensus accepts that sexual orientation is a characteristic that is immutable and it is unfair to ask people to hide their sexual orientation in order to be free from discrimination.

 4.  Being lesbian or gay bears no relationship to a person’s ability to perform in society -- be it as a doctor, nurse, lawyer, construction worker, or a member of the armed forces.  President Obama has stated:  "It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed."

Under the “heightened scrutiny” test, the government must establish that the classification is “substantially related to an important government objective.”  The objective must be the government’s “actual” purpose in enacting the law -- not a post hoc or hypothetical justification, conceived during the litigation (which sometimes may suffice under less rigorous judicial scrutiny).

The Justice Department concluded that under this “heightened scrutiny,” DOMA was plainly unconstitutional.

In light of the Justice Department’s decision, a committee of the United States House of Representatives, the so-called Bipartisan Legal Advisory Committee (BLAG), has intervened to defend DOMA in federal litigation.  Although the group is called “bipartisan,” it has explained in legal filings that only the Republican members of the group favored defending DOMA.