The Department of Justice Will Not Defend DOMA

GLAD Statement on DOJ’s Announcement it Won’t Defend Constitutionality of DOMA in Pedersen
February 23, 2011

Statement of Mary L. Bonauto, GLAD Civil Rights Project Director

The Department of Justice announced today that it will not defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) in two challenges pending in the District Courts within the jurisdiction of the Second Circuit Court of Appeals, including GLAD’s case Pedersen v. O.P.M. in District Court in Connecticut.

It is extraordinarily significant that the Dept. of Justice recognizes what we have been saying for years in our litigation. Laws that distinguish between people based on sexual orientation are more likely to reflect prejudice against gay people than good public policy. Discrimination based on sexual orientation needs to be justified by the government with exceptionally good reasons rather than being assumed to be permissible. The Attorney General concedes that DOMA fails this test.

This is a welcome acknowledgment but is not the end of GLAD’s DOMA litigation. Ultimately, the courts will decide the standard of review. Moreover, the Attorney General notified Congress that it will not defend the Second Circuit cases and either chamber may step in and appoint counsel to defend DOMA. We are prepared to address head on whatever arguments Congress may make, and bring to an end the harms DOMA imposes on our plaintiff couples and surviving spouses in the litigation and others like them. More information on the litigation and plaintiffs is available at http://www.glad.org/doma

At this time, it is unclear what effect these developments will have in the government’s pending appeal in the First Circuit in Boston of rulings striking down DOMA in cases brought by GLAD and the Massachusetts Attorney General.

The administration will continue to enforce DOMA, and it will remain in effect until the law is either repealed by Congress or finally declared unconstitutional in court.

But don't hold your breath. Congress can still defend the law and I expect the House to pick up the defense of the case.