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Obama Administration Reverses Course, Drops Defense of DOMA

In a dramatic development, the Obama administration announces that it will no longer defend the Defense of Marriage Act in federal court.  In a letter addressed to Speaker of the House John Boehner, Attorney General Eric Holder writes that President Obama has determined that DOMA violates the Fifth Amendment’s Equal Protection Clause.

Perhaps more significantly, Holder writes that the Justice Department has determined that the proper level of constitutional scrutiny that should be applied to DOMA is heightened scrutiny, a more searching form of review than the more deferential rational basis scrutiny.

When a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide the level of constitutional scrutiny to apply to the law.

The higher level, strict scrutiny, is used when a law affects a fundamental right or targets what is known as a suspect class (for example, classes based on race, nation of origin, sex or religion.)  Under strict scrutiny, classifications must be substantially related to an important governmental interest.  Laws that do not affect fundamental rights or protected classes are subject to the more deferential rational basis scrutiny, which laws must be rationally related to a legitimate government interest to pass.  Most laws can pass rational basis scrutiny; many fewer can pass strict scrutiny.

In its determination that DOMA should be considered under heightened scrutiny (which falls between strict and rational basis scrutiny), the Justice Department notes that laws must be “substantially related to an important government objective” in order to pass the test.  “[T]the United States,” Holder writes, “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.”

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  • 2. katrinlar  |  October 26, 2015 at 2:37 am

    I wonder why it took them so much time to realize that suspect class rights violation can be a fundamental reason to make necessary changes to the Defense of Marriage Act. I remember I ordered a paper from a few years ago as I studied law at the university.

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