Justice Department Will Not Fully Defend DOMA

Contrary to the suggestion of one Amicus author, the Justice Department today announced that it will stop defending parts of the Defense of Marriage Act in federal court.   The Justice Department indicates in its memo, that while it felt able to defend the law against the rational basis standard of scrutiny used in previous cases, the Obama Justice Department is not willing to argue for that standard to be used as a matter of first impression, and does not feel that the law could withstand challenge at a higher level of scrutiny.  For that reason, the administration will not defend the law in the 2nd Circuit.

The Washington Post, citing many of the same arguments put forth in the previously mentioned Amicus post, calls the move risky.  The precedent that the Obama administration is setting may come back to haunt it, and haunt progressives generally, particularly as concerns the potential constitutionality of Obama’s signature health care bill.

The Atlantic believes that when the dust settles, it will be the ruling against DOMA by Federal District Judge Joseph Tauro, a Republican appointee, that will be seen as the turning point in the movement toward federal recognized marriage equality.

Amicus will of course continue to cover the developments on the legal and social fallout from this decision.

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Noah Kaplan is the Senior Executive Editor for Online Content. He is a 3L at Harvard Law School focusing on constitutional law and criminal procedure. He has interned at the Boston United States Attorney's Office and the Colorado Attorney's General's Office. Before law school, Noah taught 4th grade as a Teach for America corps member in Phoenix, Arizona.

Latest comments
  • Isn’t Obama an expert on constitutional law by his Ivy League education? Didn’t Obama pledge to uphold the laws of the US Constitution when he took his oath of office for the Presidency? Isn’t Obama the Chief Executive Officer who is charged with upholding the law? Wasn’t DOMA passed overwhelmingly in the House and Senate by both Democrats and Republicans? Can Obama be impeached for not doing his job?

    • Let’s remember the practical side of impeachment. The Republican dominated House could impeach Obama. But the impeachment trial would be int the Democrat dominated Senate.

      Not likely that it would be an honest trial!!