June 27, 2011 Articles

Obama Administration Shifts on the Defense of Marriage Act

By Nicholas P. Drury

On February 23, 2011, Attorney General Eric Holder released a statement drastically modifying the Obama administration's policy stance on the Defense of Marriage Act (DOMA), P.L. 104-199. In his statement, Holder noted that it was the administration's opinion that discrimination based on sexual orientation should be applied to a more rigorous level of scrutiny than the rational basis test. In light of the administration's stance, Holder announced that DOMA's section 3 was unconstitutional when held to a higher level of scrutiny. Accordingly, Holder indicated that the administration would no longer defend challenges to section 3.

History of the Defense of Marriage Act
DOMA was initially signed into law by President Clinton in 1996 in response to the perceived "orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers." Page 3, House Committee Report 104–664 [PDF]. The event that so incensed the members of the 104th Congress and compelled them to act was the handing down of a ruling by the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). This case was decided by a three-justice plurality with Chief Justice Moon joining the opinion by Justice Levinson. Levinson's opinion found that the denial of marriage licenses to same-sex applicants was discrimination on the basis of sex. Levinson went on to apply the facts of the case to the strict-scrutiny test because sex is a suspect class under the Hawaiian Constitution's Equal Protection Clause at Article I, Section 5. As a point of clarification, it is worth noting that established federal jurisprudence applies a "heightened" or "intermediate" (as opposed to strict) level of scrutiny to discrimination based on sex under the U.S. Constitution's Equal Protection Clause. Effectively, the outcome of the Hawaii case on remand would have resulted in the state being required to overcome the strict scrutiny test for discriminating against the couples seeking marriage licenses. Presumably, the state would have failed to overcome the strict scrutiny test, resulting in marriage licenses being granted to the litigants.

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