Monday, February 28, 2011
Friday, February 25, 2011
The Evils of Bible Idolatry
From the blog of Michael in Norfolk
Friday, February 25, 2011
Wingnut B&B Owners Tell Gay Couple they Are "Wrong and Unnatural"
Based on their treatment of a gay couple seeking a venue for their civil union ceremony, the owners of TimberCreek B&B (pictured at left) demonstrate the mindless idiocy - and bigotry - of self-congratulatory Christianists who feel they can flout the civil laws and discriminate against anyone who does not live their life in accordance with fear based and intolerant based Christianist religious beliefs. One can only hope that the State of Illinois will prosecute these jerks for violating the Illinois Human Rights Act, which prohibits discrimination on the basis of sexual orientation by businesses open to the public. Not only did the B&B owners refuse to accommodate the civil unions ceremony but they also chastised the couple and called on them to repent. With too many individuals like these B&B owners, it is no wonder that the USA is sliding towards second tier nation status. Here are some highlights from the Advocate:
*
Todd Wathen of downstate Illinois sent out inquiries to Beall Mansion and the TimberCreek B&B regarding his upcoming civil union reception. While Beall Mansion's managers told Wathen they allow only traditional weddings at their property, the TimberCreek B&B went much further.
*
"We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois," TimberCreek operators told Wathen in an e-mail. “We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate."
*
When informed of Illinois's new civil unions law, Jim Walder of TimberCreek replied, “The Bible does not state opinions, but facts. It contains the highest laws pertinent to man. It trumps Illinois law, United States law, and global law should there ever be any.”
*
Walder later sent an unsolicited e-mail of Bible passages to Wathen. He wrote, “Hi Todd, I know you may not want to hear this, but I thought I would send along a couple of verses in Romans 1 detailing how the Creator of the Universe looks at the gay lifestyle. It’s not to late to change your behavior.”
*
Walder obviously knows very little accurate history and has done no serious study of the Bible and its many rewritings and the political compromises made in dogma all the way back to the time of Constantine the Great. Oh, and did I mention that some of the "facts" recounted in the Bible are off by centuries in terms of true time line chronology? Perhaps Walden needs to be shipped to Iran where the current leadership welcomes such ignorance in the populace.
The stupidest of arguments is "The bible says so" Bibliolaters worship a LIE, because the bible is a bunch of very old books full of contradictions and errors, that has very little to say to an Humanity in the era post- declarationof Human Rights, that trumps any ol'say in the ol'evil book called bible. it says soo in the bible? so what?
Friday, February 25, 2011
Wingnut B&B Owners Tell Gay Couple they Are "Wrong and Unnatural"
Based on their treatment of a gay couple seeking a venue for their civil union ceremony, the owners of TimberCreek B&B (pictured at left) demonstrate the mindless idiocy - and bigotry - of self-congratulatory Christianists who feel they can flout the civil laws and discriminate against anyone who does not live their life in accordance with fear based and intolerant based Christianist religious beliefs. One can only hope that the State of Illinois will prosecute these jerks for violating the Illinois Human Rights Act, which prohibits discrimination on the basis of sexual orientation by businesses open to the public. Not only did the B&B owners refuse to accommodate the civil unions ceremony but they also chastised the couple and called on them to repent. With too many individuals like these B&B owners, it is no wonder that the USA is sliding towards second tier nation status. Here are some highlights from the Advocate:
*
Todd Wathen of downstate Illinois sent out inquiries to Beall Mansion and the TimberCreek B&B regarding his upcoming civil union reception. While Beall Mansion's managers told Wathen they allow only traditional weddings at their property, the TimberCreek B&B went much further.
*
"We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois," TimberCreek operators told Wathen in an e-mail. “We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate."
*
When informed of Illinois's new civil unions law, Jim Walder of TimberCreek replied, “The Bible does not state opinions, but facts. It contains the highest laws pertinent to man. It trumps Illinois law, United States law, and global law should there ever be any.”
*
Walder later sent an unsolicited e-mail of Bible passages to Wathen. He wrote, “Hi Todd, I know you may not want to hear this, but I thought I would send along a couple of verses in Romans 1 detailing how the Creator of the Universe looks at the gay lifestyle. It’s not to late to change your behavior.”
*
Walder obviously knows very little accurate history and has done no serious study of the Bible and its many rewritings and the political compromises made in dogma all the way back to the time of Constantine the Great. Oh, and did I mention that some of the "facts" recounted in the Bible are off by centuries in terms of true time line chronology? Perhaps Walden needs to be shipped to Iran where the current leadership welcomes such ignorance in the populace.
The stupidest of arguments is "The bible says so" Bibliolaters worship a LIE, because the bible is a bunch of very old books full of contradictions and errors, that has very little to say to an Humanity in the era post- declarationof Human Rights, that trumps any ol'say in the ol'evil book called bible. it says soo in the bible? so what?
Thursday, February 24, 2011
Justice Department Will Cease Defending DOMA Lawsuits
From Michael in Norfolk's blog
In a surprising move, Barack Obama and the Department of Justice have announced that the DOJ will cease defending the constitutionality of DOMA in pending lawsuits. The action seems to have been triggered by the new filings in the 2nd Circuit. This is precisely the action that some LGBT legal experts have been demanding for quite some time. No doubt the Bible beaters and their GOP political whores in Congress are going to go absolutely berserk since this move blocks their effort to use the federal laws to punish gays for not conforming to Christianist religious beliefs. The following is the text of the DOJ letter to Congress explaining the basis for the decision:
*
The Honorable John A. Boehner, Speaker
U.S. House of Representatives
Washington, DC 20515
*
Re: Defense of Marriage Act Dear Mr. Speaker:
*
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
*
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 2011, 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.
*
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.
*
Standard of Review
*
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).
*
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” *Lawrence v. Texas*, 539 U.S. 558, 578 (2003).
*
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, *see* Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, *see* Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
*
Third, the adoption of laws like those at issue in *Romer v. Evans, *517 U.S. 620 (1996), and *Lawrence*, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” *Cleburne*, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed *entirely* to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
*
Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” *Frontiero v. Richardson*, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in *Lawrence* and* Romer*), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. *See, e.g.,* Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)
*
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under *Bowers v. Hardwick*, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of *Bowers* in *Lawrence v. Texas*, 538 U.S. 558 (2003). Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, *Lawrence* and *Romer*. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
*
Application to Section 3 of DOMA
*
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” *Clark v. Jeter*, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” *United States** v. Virginia* , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” *Id*. at 533.
*
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
*
Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. *See Cleburne*, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); *see also* *Romer*, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); *Palmore v. Sidotti*, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
*
Application to Second Circuit Cases
*
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in *Windsor* and *Pedersen*, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
*
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. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
*
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).
*
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in *Windsor* and *Pedersen* of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. 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.
*
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
*
A motion to dismiss in the *Windsor *and *Pedersen *cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
*
Sincerely yours,
Eric H. Holder, Jr.
Attorney General
In a surprising move, Barack Obama and the Department of Justice have announced that the DOJ will cease defending the constitutionality of DOMA in pending lawsuits. The action seems to have been triggered by the new filings in the 2nd Circuit. This is precisely the action that some LGBT legal experts have been demanding for quite some time. No doubt the Bible beaters and their GOP political whores in Congress are going to go absolutely berserk since this move blocks their effort to use the federal laws to punish gays for not conforming to Christianist religious beliefs. The following is the text of the DOJ letter to Congress explaining the basis for the decision:
*
The Honorable John A. Boehner, Speaker
U.S. House of Representatives
Washington, DC 20515
*
Re: Defense of Marriage Act Dear Mr. Speaker:
*
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
*
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 2011, 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.
*
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.
*
Standard of Review
*
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).
*
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” *Lawrence v. Texas*, 539 U.S. 558, 578 (2003).
*
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, *see* Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, *see* Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
*
Third, the adoption of laws like those at issue in *Romer v. Evans, *517 U.S. 620 (1996), and *Lawrence*, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” *Cleburne*, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed *entirely* to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
*
Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” *Frontiero v. Richardson*, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in *Lawrence* and* Romer*), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. *See, e.g.,* Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)
*
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under *Bowers v. Hardwick*, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of *Bowers* in *Lawrence v. Texas*, 538 U.S. 558 (2003). Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, *Lawrence* and *Romer*. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
*
Application to Section 3 of DOMA
*
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” *Clark v. Jeter*, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” *United States** v. Virginia* , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” *Id*. at 533.
*
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
*
Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. *See Cleburne*, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); *see also* *Romer*, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); *Palmore v. Sidotti*, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
*
Application to Second Circuit Cases
*
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in *Windsor* and *Pedersen*, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
*
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. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
*
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).
*
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in *Windsor* and *Pedersen* of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. 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.
*
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
*
A motion to dismiss in the *Windsor *and *Pedersen *cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
*
Sincerely yours,
Eric H. Holder, Jr.
Attorney General
Wednesday, February 23, 2011
Tuesday, February 22, 2011
Monday, February 21, 2011
Sunday, February 20, 2011
Thursday, February 17, 2011
Tuesday, February 15, 2011
Sunday, February 13, 2011
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