The first ever federal lawsuit against Section 3 of DOMA (“Defense Of Marriage Act”) was filed on March 3, 2009 by GLAD (Gay & Lesbian Advocates & Defenders) on behalf of eight same-sex married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. They served the government with the lawsuit the week of April 27th and now the Department of Justice, under President Obama’s authority, has until the week of June 22nd to respond.
President Obama now has a choice — direct Attorney General Holder and the Justice Department to defend DOMA in court or keep his campaign promise by asking Holder not to defend this unconstitutional law.
Past presidents have ordered the Justice Department not to defend certain federal laws being challenged in court where such laws appeared on its face to be unconstitutional. There is no clearer example of a blatantly unconstitutional law than DOMA which President Obama himself has called an “abhorrent law” and that its repeal is “essential”.
There is also a Washington Post editorial urging President Obama to take the very same action, “President Obama is on record opposing DOMA. Although the Justice Department typically defends acts of Congress in court, Mr. Obama should ask his legal advisers to determine whether they, like the plaintiffs, believe DOMA as applied in this case is unconstitutional. If so, Mr. Obama should consider whether this is one of those rare instances where the Justice Department declines to defend a law.”