Fact Check

Debunking Conservative Talking Points On DOMA

February 25, 2011 6:18 pm ET

On February 23, the Obama administration announced that it found Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional and would not be defending the section in two upcoming lawsuits.   In the days since that announcement, conservative politicians, commentators, and anti-gay activists have offered a flurry of false and misleading talking points concerning the administration's decision. Here, Equality Matters sets the record straight.

The Talking Point: Obama Is Refusing To Enforce The Law

  • Megyn Kelly, host of America Live: "The U.S. Attorney General Eric Holder has just announced that President Obama does not believe the law is constitutional and neither does Eric Holder.They're no longer going to be enforcing this federal lawthat's on the books, passed by Congress, signed by President Clinton and still very much a law."[AmericaLive via Equality Matters,2/23/11]
  • Monica Crowley, radio conservative commentator: "It is his responsibility under the Constitution to enforce that law. Not just to decide 'well I don't like that law so I'm not going to enforce it.' To me that is a form of dictatorship. That is Mubarak Obama. You can't just pick and choose which law you're gonna enforce when you're president of the United States or the Attorney General." [America Live via Equality Matters,2/23/11]

The Facts: Obama And The DoJ Will Continue To Enforce DOMA, Despite Not Defending It In Court. Attorney General Holder released a statement clarifying that, although the administration would not provide a legal defense of Section 3 in court, it will continue to enforce the law as written:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.   To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality.  [Department of Justice, Letter to Congressional Leadership, 2/23/2011]

The Talking Point: Refusing To Defend DOMA Is Unconstitutional And Unprecedented

  • The Family Research Council: "President Obama's Justice Department has a constitutional obligation to defend federal law, even when he disagrees with the law. The Constitution requires that President Obama "shall take care that the laws be faithfully executed." By failing to defend DOMA, he is not satisfying this constitutional requirement. What will be the next law that he chooses not to enforce or uphold?" [FRC Action Alert, 2/24/11]
  • Monica Crowley: "We are a nation of law. And what the Constitution says is that the President of the United States doesn't get to decide which laws he likes and which ones he's going to enforce. [...] To me that is a form of dictatorship. That is Mubarak Obama. [...] If President Bush had done that there would be calls for his impeachment. I think this is a very serious story." [America Live via Equality Matters,2/23/11]

The Facts: Legal Precedent Exists For Refusing To Defend Unconstitutional Laws In Court. In his letter to Congressional leadership, Attorney General Holder clearly cites the basis upon which the government can legally choose not to defend legislation:

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.  However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute."  Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).  This is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).  [Department of Justice, Letter to Congressional Leadership, 2/23/11]

President George W. Bush Did The Same Thing When He Was President. In ACLU et al., v. Norman Y Mineta, the Justice Department chose not to defend a law prohibiting the display of marijuana policy reform ads in public transportation systems:

The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, "the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision."  [ACLU, 1/25/06]

As Did President Bill Clinton. In a 1996 press briefing, Jack Quinn, counsel to President Clinton, stated that the Clinton administration would not defend a law barring HIV-positive men and women from serving in the armed forces because they deemed it unconstitutional:

Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not. [White House by Quinn and Dellinger on HIV Provision via Clinton Presidential Center, 2/9/96]

And President George H. W. Bush. As Former Justice Department Attorney Martin Lederman explained in 2005, while Supreme Court Chief Justice John Roberts worked in President George H. W. Bush's Office of the Solicitor General, he was instrumental in the decision for the Justice Department not to defend federal statutes that required minority preferences in broadcast licensing in Metro Broadcasting v. Federal Communications Commission:

[A] memo in the files of Associate White House Counsel Fred Nelson (see the back page of this) reveals that Roberts was "[r]eluctant to defend [the] commission's position." In the Supreme Court, the Department of Justice not only did not defend the federal statutes -- it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG's amicus brief went further still: It urged the court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action programs (a position that would, of course, restrict Congress's future legislative prerogatives -- i.e., that would substantially limit federal power). [Balkinization, 9/8/05]

Also, President Ronald Reagan. In INS v. Chadha, the Reagan administration was actively involved in arguing that a law passed by Congress was unconstitutional:

Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional. The Court of Appeals held that § 244(c)(2) violates the constitutional doctrine of separation of powers, and accordingly directed the Attorney General to cease taking any steps to deport Chadha based upon the House Resolution.  [Syllabus, INS v. Chadha, accessed 2/24/11]

It Is Constitutional To Refuse To Defend Unconstitutional Laws. A 1994 memorandum issued by the Department of Justice cites numerous legal decisions establishing the "unassailable" basis for the Executive Branch to not enforce a statute they view as unconstitutional:

Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute.


Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. 


While the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable, it does not offer sufficient guidance as to the appropriate course in specific circumstances. [Department of Justice Memorandum, 11/2/94]

The Talking Point: Obama Is Flip-Flopping In Order To Appease His Base

  • Pat Buchanan: "I think the president's position has changed, as you pointed out Chris. We gotta ask why he did. Has he been sitting down studying the Constitution? Of course not. This is a political decision. There's no doubt he's under great pressure from his political base, part of which is the gay rights, and the more militant gay rights community, and I think he simply capitulated."[Equality Matters, 2/23/11]
  • Mike Huckabee: "He should also explain why this isn't the position he took during the campaign. I'm convinced that had he taken this position in the campaign, he might not have been elected.But it is very different than the position he took during the campaign. He said he did not support same-sex marriage, in fact supported traditional marriage of man and woman." [Think Progress, 2/24/11]

The Facts: Obama Has Been In Favor Of Repealing DOMA Since Before He Was Even Elected. As Think Progress has noted, Obama has openly favored the repealed of DOMA since he was a candidate in 2008, pledging to "fully repeal" the law. From Obama's campaign website:

Obama also believes we need to fully repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. [BarackObama.com, accessed 2/24/11]

This Is The First Time DOJ Charged With Determining Proper Review Standard. The lawsuits currently filed against Section 3 of DOMA are unique because they are being pursued in the Second Circuit, which has no precedent for what standard should be used when dealing with laws concerning sexual orientation and the Justice Department is now required "to take an affirmative position on the level of scrutiny that should be applied." From the Attorney General's letter to Congressional Leadership concerning DOMA:

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision.   In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA 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.   Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.).   Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.ii

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.   As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional. [Department of Justice, Letter to Congressional Leadership, 2/23/11]

The Talking Point: Obama Wants To Force States To Recognize Out-Of-State Same-Sex

  • Alexander Mason, policy analyst for the Family Policy Network: "Today, the Obama administration revealed it would no longer defend as constitutional the Defense of Marriage Act, which was passed in 1996 in order to allow states to determine their own policies on homosexual "marriage." Since President Clinton signed DOMA into law, 30 states have passed versions of marriage amendments. But now all of them are in jeopardy. DOMA made clear that no state needed to accept the definition of marriage imposed by any other state. In other words, Mississippi doesn't have to recognize homosexual "marriage" just because Massachusetts does. But if DOMA is struck down by a court, it may result in the subsequent imposition of homosexual marriage on all 50 states." [FPN Blog, 2/24/11]
  • Megyn Kelly: "In the meantime, what does this mean as a practical matter? Does it mean that, now that the Obama White House and the Attorney general have said they believe the law is unconstitutional, does it have any legal effect, does it now mean that you can get married in a same-sex union in Massachusetts you can go down to Texas and force Texas to recognize it?" [Equality Matters, 2/24/11]
  • Rep. Ron Paul (R-Texas): "Today's announcement that the Obama Administration will abandon its obligation to enforce DOMA is truly disappointing and shows a profound lack of respect for the Constitution and the Rule of Law. President Obama has just unconstitutionally said that Iowa should have to allow San Francisco and New York City decide its marriage laws. That position is unacceptable. The Administration's dereliction throws the door wide open for special interests to abuse Federal power and attempt to force Iowa to recognize non-traditional marriage. Upcoming battles are looming just over the horizon." [The Iowa Republican, 2/24/11]

The Facts: Holder Only Dropped The Defense Of Section 3 Of DOMA. The suits currently challenging DOMA in the courts are specific to Section 3 of the law. Section 3 has to do with federal recognition of same-sex marriages already approved by the states:


    (a) In General.--Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

''Sec. 7. Definition of 'marriage' and 'spouse'

    ''In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.'' [Defense of Marriage Act]

State Recognition Of Other State Marriages Is Mentioned In Section 2. Section 2 of DOMA, which the administration did not stop defending, absolves states from the requirement to honor same-sex marriages from other states:


    (a) In General.--Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:

''Sec. 1738C. Certain acts, records, and proceedings and the effect  thereof

    ''No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'' [Defense of Marriage Act]

The Talking Point: Obama Is Ignoring The Will Of The People

  • The Washington Times editorial: "The Obama administration announced yesterday that it will not defend the constitutionality of the Defense of Marriage Act (DOMA). This is the next step of President Obama's strategy to force the radical homosexual agenda on America against the will of the people and Congress." [The Washington Times,2/23/11]
  • Mathew Staver, founder of the anti-gay religious group Liberty Counsel: "Today President Obama has abandoned his role as President of the United States and transformed his office into the President of the Divided States. He has been the most divisive president in American history.He has today declared war on the American people and the fundamental values that are shared by most Americans. His radicalism resulted in the historical push-back in the 2010 elections. His radicalism today will come back around when the people respond to this betrayal in 2012." [Liberty Counsel "Liberty Alert,"2/23/11]

The Facts: Americans Are Evenly Divided On Marriage Equality. A poll released by the Associated Press in August of 2010 found that a narrow majority of Americans now supports federal recognition of married same-sex couples. 52% of respondents were in favor of marriage equality, with 46% opposed. [On Top Magazine, 9/20/10]

Section 3 Actually Forces The Government To Ignore The Will Of The States. Section 3 of DOMA forces the federal government to ignore same-sex marriages, even if states have voted to legalize them. NBC legal correspondent Pete Williams clarified the difference on the February 24 edition of MSNBC's The Daily Rundown:

WILLIAMS: Now, let's be clear what this is about. This is not about whether states must permit gay marriage. It's about in those states that decide to do it, will the federal government also recognize those marriages. [MSNBC, The Daily Rundown, 2/25/11]

Obama Explicitly Invited Congress To Defend DOMA Instead. In his letter to Congressional Leadership, Attorney General Holder explicitly invites Congress to take up the mantle of defending DOMA in court:

Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.   We will remain parties to the case and continue to represent the interests of the United States throughout the litigation. [Department of Justice, Letter to Congressional Leadership, 2/23/11]

The Talking Point: The DoJ/Obama Is Applying Strict Scrutiny To Sexual Orientation Cases

  • Maggie Gallagher, chairwoman of the National Organization for Marriage: He not only is refusing to defend the law, he has unilaterally declared that gay is like black, that orientation is now subjected to strict scrutiny. I actually do not recall ever an Attorney General getting in front of the courts in deciding what's a classification subject to strict scrutiny under the law.[Equality Matters, 2/24/11]

The Facts: Holder Called For The Use Of "Heightened Scrutiny" In His Letter To Congress. The phrase "strict scrutiny" cannot be found in any of the statements released by the Department of Justice about the decision to not defend DOMA. Holder only recommended that some level of "heightened scrutiny" be used when dealing with sexual orientation cases:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation.   It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies:   (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). [Department of Justice, Letter to Congressional Leadership, 2/23/2011]

The Talking Point: Obama Is Wading Into Social Issues When He Should Be Focusing On The Economy

  • John Boehner: While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation. [Talking Points Memo,2/23/11]
  • Mike Huckabee: I find it very disappointing that in a time when the economy and world affairs are exploding, the Justice Department would decide that this is what they're going to put on the plate today. [New York Times,2/24/11]

The Facts: Obama Was Legally Required To Take A Stand On The DOMA Lawsuits By March 11. In his letter to John Boehner, Holder explained that the lawsuits required the administration to "take an affirmative position on the level of scrutiny" to be applied in those cases. Jonathan Capehart at The Washington Post responded to the critics in a February 24 article:

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. [The Washington Post, 2/24/11]

Obama's Decision Allows Him To Avoid A Pointless Legal Battle. Obama's decision prevents the administration from becoming entangled in a drawn out legal battle over same-sex marriage. Andrew Napolitano, former New Jersey Superior Court Judge and host of the Fox Business program Freedom Watch, noted the shrewdness of the president's decision in an interview with Fox News Insider:

NAPOLITANO: When a law is actually being challenged in court and the government recognizes the law is likely to lose, it's doing the right thing by throwing in the towel, by saying to the court "we can't defend this, because under the standards that the court will use to evaluate the law, we know it's going to lose. We know the government is going to lose and the law is going to fall." So the government is actually doing the taxpayers a favor, and doing the courts a favor, and doing the voters a favor by saying "we can't defend it any longer." [The Advocate, 2/24/11]

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