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Posted at 11:51 AM ET, 02/24/2011

Obama's historic action against DOMA

By Jonathan Capehart

When the Supreme Court handed down its decision in Lawrence v. Texas in June 2003, a wave of euphoria rippled through the gay community across the country. Not only did the nation's highest court affirm their existence and their right to love without fear of criminal prosecution, but it also made the argument with powerful and moving language. The euphoria is back.

For the first time, the president of the United States and the chief law enforcement officer of the United States have said with one clear voice that a law which denies married same-sex couples equal protection under the Constitution is not only wrong but also unconstitutional. With one statement, the DOMA debate changed, and gay men and lesbians gained a powerful ally in court, armed with a powerful argument.This reversal was not taken lightly. It is longstanding practice for DOJ to defend the laws of the nation if reasonable arguments can be made. Yesterday, Justice announced there were no such arguments in the cases before a federal court in the Second Circuit.

In a six-page letter to House Speaker John Boehner yesterday, Attorney General Eric Holder announced that President Obama believed Section 3 of the so-called Defense of Marriage Act is unconstitutional and that his administration would no longer defend the repugnant statute in court. The president and the attorney general came to this conclusion after determining that gays and lesbians deserved a higher level of scrutiny in two new lawsuits challenging DOMA, which were filed in jurisdictions "without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny."

Republicans and others are wondering why Obama is wading into a controversial social issue when his focus, they say, should be on taking the paddles to the economy and job creation. Last I checked, the president can and must do more than one thing at a time. More importantly, though, a March 11 filing deadline in those two cases demanded that the justice department take a stand. As Holder noted in his letter to Boehner, those lawsuits required DOJ to "take an affirmative position on the level of scrutiny" to be applied. Holder is doing his job and upholding the Constitution.

Achieving a heightened level of scrutiny in discrimination cases isn't easy. Four criteria must be met.

(1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

The Holder letter goes on to show how gays and lesbians meet each of the four factors. It also takes clear stands in arguments that have been used to denigrate them and deny them equal protection. Holder reiterates the administration's rejection of the discredited view that heterosexual marriage must be maintained for "responsible procreation and child-rearing." The belief that being gay is a choice or subject to moral approval is "incorrect." And to show that DOMA was motivated by bias and negative stereotypes, Holder's letter footnotes some of the greatest hits (read, ugly statements masquerading as facts) from the legislative record.

So, what's next? There are a few things to keep in mind.

1.) What Obama and Holder have determined after a careful analysis is that discrimination cases involving sexual orientation deserve heightened scrutiny and that Section 3 of DOMA is unconstitutional. Now it is up to the district court within the jurisdiction of the Second Circuit Court of Appeals to decide whether it agrees. But no matter what happens, as Evan Wolfson of Freedom to Marry told me, "You can't unring the Liberty Bell."

2.) DOJ attorneys have been instructed to articulate the new DOMA stance to the courts in other pending DOMA cases.

3.) The ball is now in Boehner's court to decide whether Congress will defend DOMA now that justice won't. But he doesn't have much time. As I've already mentioned, the deadline for filing arguments in the case is two weeks from tomorrow.

DOMA, like the ban on gay men and lesbians serving openly in the military, is an act of Congress that should be repealed by an act of Congress. Holder's announcement yesterday jump-started efforts in the House (uphill battle) and the Senate (less uphill but uphill nonetheless) to do just that. But I don't hold out much hope that they'll be successful. This fight is going to be waged, won or lost in the courts. It's a risk, especially with the current make-up of the Supreme Court. And it's a risk worth taking.

By Jonathan Capehart  | February 24, 2011; 11:51 AM ET
Categories:  Capehart  | Tags:  Jonathan Capehart  
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Next: DOMA misinformation on Fox News


Help me understand this. Congress passes a law and it is signed by the President and becomes law of the land. Justice Department then decides it is not just so won't enforce it.

Justice is now SCOTUS? What other laws will DOJ enforce or not enforce according their whims? Immigration laws? DOJ and the President will decide what is good and what is bad? This sure seems pecularly high-handed and even dictatorial on the part of DOJ and the WH.

It also seems like a executive-congressional confrontation coming. Do I smell impeachment of Holder?

Posted by: wjc1va | February 24, 2011 12:48 PM | Report abuse

"...repugnant statute..." ! For once the far left and the far right agree.

Posted by: flyover22 | February 24, 2011 1:08 PM | Report abuse

Mr. Capeheart: Are YOU gay?

Posted by: ddaly7 | February 24, 2011 1:21 PM | Report abuse

Obama's decision is a shrewd one. The GOP appeals to two groups: the fearfully greedy rich and bigots. Give the bigots something to get up in arms about and you expose the ugliness at the heart of the Republican party, driving moderates away.

Posted by: dnahatch1 | February 24, 2011 1:26 PM | Report abuse

From a nation of laws to a nation of feelings, litigation, and spin. From a nation of elected representatives supporting the will of the people to unionized government shutting down the government for themselves. From a nation of citizens to a nation of special interest groups. From a nation of legislative laws to a nation of judicial opinion. From a nation self reliance to one of dependence. From a nation of progress and innovation to a "what have you done for me lately" nation. From a nation of wealth creation to one of redistribution. From a nation of fiscal control to a nation of drunken sailors.

From a nation of big ideas, international and domestically, to a nation of the trite. From a nation with a President leading the nation to a nation with a Community Organizer in Chief getting the best deal for his block.

We have lost so much.

Posted by: flyover22 | February 24, 2011 1:39 PM | Report abuse

You sound absolute giddy, Jonathan. Is that wedding bells I hear?

Posted by: r_loveland | February 24, 2011 1:39 PM | Report abuse

when a conservative President decides to not obey a law obama passed because he thinks it is not constitutional...
will the same support be heard...

Posted by: DwightCollins | February 24, 2011 2:04 PM | Report abuse

It seems very black and white to me:

* Congress makes laws.

* The Supreme Court decides whether laws are Constitutional.

* The President enforces laws.

It's clear that the President is overstepping his authority and role.

For example's sake, what if congress tried to order air strikes on Libya? Wouldn't they be overstepping their authority? The President has a duty to defend the laws of the land, not arbitrarily pick and choose which ones he wishes to uphold.

The same goes for the legislators in Wisconsin. I think it's despicable how they are trying to ostensibly rewrite the rules just because they don't like being in the minority. Republicans didn't like the health care bill, but they employed "procedural" methods, which are a part of the rules of congress, to try and stop it. They weren't successful stopping the legislation, so now they must rely on the vote of the people to get it accomplished through the election process. That is how it was intended to work. These Wisconsin legislators should be ousted. I hope their bosses, the People, fire every one of them.

Posted by: Opinionated777 | February 24, 2011 2:08 PM | Report abuse

Hey wjc1va:
You don't have your facts straight. What the Justice Dept. has decided is that it will no longer DEFEND the law's constitutionality in court, an action that many administrations (on other issues) have taken in the past (and is fully within their rights). They have specifically stated that DOJ will continue to ENFORCE the laws that are on the books. Repeat: They will continue to enforce DOMA. Perhaps if you weren't getting your erroneous misinformation from FOX, you would understand the distinction.

Posted by: amabo1 | February 24, 2011 2:10 PM | Report abuse

He should've done this closer to elections. I guess I should care, but I really don't one way or the other. Isn't supposed to be up to the states? Although I guess it would be weird going through life being considered married in one state and not in the next.

Posted by: hebe1 | February 24, 2011 2:11 PM | Report abuse

The analsexuals are happy today, dancing in the streets, drunk on diarrhea daiquiris.

Posted by: TofuLowersSpermCount | February 24, 2011 2:22 PM | Report abuse


I have read twice what you said. I agree completely. Each day, I wonder what misguided notion from Obama will surface next.

Posted by: keepthefaith | February 24, 2011 2:22 PM | Report abuse

As far as DOMA is concerned, the President is trying to, singling handedly, change the landscape of the culture of our country, and against the will of the people and the states.

I know this part will ruffle feathers, but here goes: the definition of marriage comes from moral principles derived from the Bible. This great country was founded and now rests on these principles. They are the underpinning on which America stands tall. I don’t intend for this to be a religious tirade, but rather an illumination of the facts so that we all can understand why we face some of the challenges we now face in this country.

Our God, to which there is only one, and because of His great love for us, has given us the right to make choices. However, that doesn't absolve us of the consequences and ramifications of bad choices. Anytime we, as a country, move further away from the precepts placed before us through the words in that great and awesome book and by our ever loving God, we wash away some of the underpinning that makes this country great.

I know that for some of you it is hard to accept, especially if you are gay or believe in another religion or God. But, take note of the history of this country and how it has become great from such humble beginnings. However, it is in a state of decline, due to the layers of decisions that have allowed us to get further away from the will of God.
The real issue here is not about gay rights but, instead, how to preserve the divine institution of one man and one woman. What if an administration decided not to acknowledge monogamy laws because they deemed them a restriction of choice, and, therefore, unconstitutional? Wouldn’t that serve to erode the morality of this country?

Look, I have gay friends, and I have friends that don't have a relationship with God. I love those people. They are dear to me. However, I can't be blind to the reality and realization of the truth.
Therefore, We must, for the sake of our country, reverse course.

Posted by: Opinionated777 | February 24, 2011 2:26 PM | Report abuse

Gee, it sure would be nice if the Republic Party would practice some good old libertarian "live and let live" instead of telling free individuals how to live their lives like in some dictatorship. We need to get government off our backs and out of our lives. Hello Republic Party???

Posted by: mongolovesheriff | February 24, 2011 2:32 PM | Report abuse

It also seems like a executive-congressional confrontation coming. Do I smell impeachment of Holder?

Posted by: wjc1va
uhhh are smelling your upper lip. Please learn about the constitution, legal precedent, and civics. I know that nothing would excite you wingnut fools more than to see an impeachment, but it would need to be based on something other than being a poor loser.

Posted by: LABC | February 24, 2011 2:46 PM | Report abuse

Why do liberals praise the anus as the perfect sex organ? The vagina will soon be banned and rendered obsolete.

Posted by: TofuLowersSpermCount | February 24, 2011 2:50 PM | Report abuse

Ultimately, this should stand as another victory for the rights of individuals against the "tyranny of the majority".
It is also why a republic is a superior form of government to a democracy; the majority is often wrong, when it comes to the individual rights of minorities.

Posted by: OldUncleTom | February 24, 2011 3:07 PM | Report abuse

Therefore, We must, for the sake of our country, reverse course.

Posted by: Opinionated777
We did, in 2008, when we elected Obama, and we are the better for it. I agree that, morally, this country had declined to a shockingly low level, starting with the Reagan's presidency of demonizing the poor and ignoring the AIDS crisis, and reaching its absolute nadir during the Bush administration, which invaded a country unnecessarily, costing thousands of innocent lives and over a trillion dollars in taxpayer money, with its policy of torture and rendition, abhorrent to ANY DECENT human being. Obama has a long way to go to mitigate those thirty years but at least he has made a start.

However, in all your posts, Opinionated, you never once mention this real moral decline or do you actually think that two men (or women) marrying each other is more morally wrong that torturing a man to death? Is that where your morality lies? Is that what YOUR God says? Toture yes. Gay marraige no?

There are alot of things I dislike about the right and the opinions of people like you but foremost is this ridiculous attitude that somehow they are morally superior to the left, they, the supporters of torture and unnecessary war.

So get your morality in order before you lecture the rest of us on what you THINK God believes.

Posted by: nyrunner101 | February 24, 2011 3:07 PM | Report abuse

Have you guys checked out devorce rates? Do you really want the two-cars, and house in the burbs thing? Be careful what you wish for.

Posted by: marknelso | February 24, 2011 3:46 PM | Report abuse

Would Jesus have changed water into wine at a gay marriage?

Posted by: ravitchn | February 24, 2011 3:54 PM | Report abuse

Would Jesus have changed water into wine at a gay marriage?

Posted by: ravitchn | February 24, 2011 3:54 PM


Show me scripture that says he wouldn't.

Posted by: ravensfan20008 | February 24, 2011 4:04 PM | Report abuse

Therefore, We must, for the sake of our country, reverse course.

Posted by: Delusional777 | February 24, 2011 2:26 PM

Fixed it for you.

Posted by: wireman65 | February 24, 2011 4:20 PM | Report abuse


Posted by: ravitchn | February 24, 2011 4:20 PM | Report abuse

Capehart is in fact GAY...and does anyone remember who signed DOMA into law?? A Democratic President named BILL CLINTON. Yes the same one who signed 'Don't ask don't tell'.

Posted by: maddogjts | February 24, 2011 4:31 PM | Report abuse

Obama's Historic Action......on the most pressing issue of our times?

"New residential sales sink 12.6% from December, 18.6% from previous January."

Historic action......on the only topic he knows real well.......

Obama's Poll numbers are dropping in every state....wonder why?

Posted by: georgedixon1 | February 24, 2011 5:07 PM | Report abuse

So then:
1. What "history of discrimination" have people who engage in homosexual behavior been subject to?
2. What "obvious, immutable, or distinguishing characteristic... defines them as a discreet group?" Their single behavior of choice?
3. How is this group a minority? What other minority is a heterogeneous population defined unilaterally by a sole behavior of choice?
4. What characteristics of this group are being discriminated against by policy? What policy?

Liberals fail to show how people who choose to engage in homosexual behavior meet the four criteria. Merely declaring they do is NOT good enough. Homosexuality is a BEHAVIOR. It is a bad behavior that is biologically incorrect, and is engaged in by choice. This does NOT warrant the special right of forcing others to recognize their behavior as legitimate.

Posted by: jkhamlin | February 24, 2011 5:50 PM | Report abuse

Teabagger hatred and bigotry " a bad behavior that is biologically incorrect, and is engaged in by choice. This does NOT warrant the special right of forcing others to recognize their behavior as legitimate."

Posted by: areyousaying | February 24, 2011 6:50 PM | Report abuse

I'm guessing that most of the individuals who have commented on this story are quite sensitive when it comes to criticism of their religious beliefs. They might call it "Catholic-bashing" or whatever the case may be. They might feel themselves persecuted. They probably feel they have the right to believe in what they choose, what they were taught, what they consider is the truth. That's fine. But could you please not throw your ignorance and lack of reasoning ability onto the civilized world? And while you're cleverly speculating on the demise of the vagina, you might want to mourn the demise of the organ surrounded by your prodigious skull.

Posted by: glumps | February 24, 2011 7:07 PM | Report abuse

Cafeteria Constitutionality? I like it. I think I'll have some too.

Posted by: DJ_Spanky | February 24, 2011 7:09 PM | Report abuse

When laws are enacted, someone in the government has to defend those laws from court challenges. If the President won't do it, then the Congress has the responsibility. American presidents are not kings, so Congressional oversight is vital to maintaining our Constitutional rights. When our laws are under attack, elected officials have a responsibility to defend them.

Posted by: allamer1 | February 24, 2011 7:22 PM | Report abuse

So a gay columnist applauds the "president" ignoring his sworn duties as long as it jibes with the columnist's desires. So in 2012 I'm sure that Gayheart won't have a problem with the next President deciding that Row vs Wade is unconstitutional and refusing to defend it. This current "president" has long passed the realm of high crimes and misdemeanors. It is time to impeach the clown.

Posted by: oldno7 | February 24, 2011 7:25 PM | Report abuse

What's next for the Washington Post? Nazi Pelosi writing a column in support of botox?

Posted by: oldno7 | February 24, 2011 7:33 PM | Report abuse

once we get over this law the democratic party can focus on ped rights.

Posted by: jmounday | February 24, 2011 7:41 PM | Report abuse

flyover22, that's a classic post, man. Very eloquent obituary of a once great nation.

Posted by: DJ_Spanky | February 24, 2011 7:59 PM | Report abuse

Isn't the President supposed to UPHOLD the law ? even if he disagrees with it ?

What happens tomorrow IF President Obama and his Justice Dept. decide not to have ICE or Homeland Security enforce immigration laws ? or the civil rights of whites ? or allow women in the military ? or stop enforcing EPA challenges ? or stop enforcing bans on oil drilling in sensitive areas of America ? like Alaska or the Gulf ?

Isn't that behavior what we deplore in Arab dictators ?

IF Obama really doesn't think the law is constitutional... he can invite challenges or alternatively propose changes to Congress.. but this really is a dangerous precedent. The left may regret this victory.

Posted by: pvilso24 | February 24, 2011 8:16 PM | Report abuse

You silly pack of know-it-alls, in love with your selves, and the Condescender-in-Chief, maybe Adam and Steve are the way to go with y'all. Enjoy your Gay Everafter Moment...everafter is over.

Since Y'all have such great imaginations, imagaine this: On Thursday, January 24, 2013, President Sarah Palin announces she believes all Roe v Wade federal funding is unconstitutional and has directed DOJ not to defend it anymore. Further she believes all federal bans on Oil Exploration and Development is also unconstitutional and is removing Administrative opposition, and on top of that she believes all federal funding of School Districts that oppose School Choice will lose that money, until policies are brought in line with the Party that just won the election. What a beautiful dream, eh? More wanted children, lower fuel prices, more civil, well-educated, prosperous people.

Now there is a Governance style you all are familiar with. Makes your leg tingle, just thinkin' about it, no?

Posted by: RichNomore | February 24, 2011 10:25 PM | Report abuse

No constitutional scholars writing here, I'm betting. Lord knows I'm not one, either, so I'm asking this question: is amabo1's analysis correct that Obama has the right to choose NOT to defend the constitutionality of DOMA in court while STILL enforcing the law? Defending a law's constitutionality before a court seems to be a quite different thing than enforcing it. Apparently Obama, Holder, and DOJ et al will enforce the law. To rephrase: does the (apparently constitutional) imperative that an administration enforce the law extend to defending its constitutionality in court?

What's the deal here? Please don't answer if you're going to rant or make crap up.

Posted by: post_reader_in_wv | February 24, 2011 11:49 PM | Report abuse

With the exception of maybe George Will and Charles Krauthammer, every shill at the Compost seems to be either gay or a pinko, or worse yet, a gay pinko.

Posted by: ddaly7 | February 25, 2011 9:53 AM | Report abuse

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