DOJ: DOMA is Unconstitutional

The DOJ has just announced, in the context of two cases challenging the Defense of Marriage Act in the Second Circuit, that it will no longer defend the law against constitutional attack.  In a press release, the Attorney General announced:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

This is, obviously, very big news, and represents a significant shift in the DOJ’s litigation posture in the pending DOMA cases.  The DOJ justifies the shift by arguing that in the earlier DOMA cases, like Gill v. OPM, governing authority in the First Circuit had precluded the application of heightened scrutiny to classifications based on sexual orientation.  But the Second Circuit, notes the Department, has never decided the level of scrutiny applicable to discrimination burdening gays and lesbians.  At the same time, the DOJ says that it will continue to enforce DOMA until Congress repeals it or until there is a definitive judicial decision striking it down.

There are many questions to ponder, including: who will now defend DOMA and will they have standing to do so?  The DOJ suggests that members of Congress may be able to defend the federal law, but that is far from clear under the Court’s standing precedents, like Raines v. Byrd, written by Chief Justice Rehnquist. 

I’m sure I’ll have more to say about the DOJ’s announcement.