On this day in history, the Department of Justice released a statement by Eric H. Holder, Jr., the 82nd Attorney General of the United States, declaring:
[President Obama] has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more 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 such cases.”
Much controversy ensued over the putative duty of the executive branch to defend laws enacted by the legislative branch. In light of this uproar, Neal Devins (Goodrich Professor of Law and Professor of Government, College of William and Mary) and Saikrishna Prakash (David Lurton Massee, Jr., Professor of Law & Sullivan & Cromwell Professor of Law, University of Virginia), made a detailed analysis of whether there is in fact (i.e., in law), any basis for this charge. You can read their arguments in their article “The Indefensible Duty to Defend, Columbia Law Review, Vol. 112, No. 507, 2012, here, which in essence find:
…there simply is no duty to defend federal statutes the President believes are unconstitutional. Contrary to his defenders, there likewise is no duty to enforce such laws. Given President Obama’s belief that the DOMA is unconstitutional, he should neither enforce nor defend it.”
On June 26, 2013, The Supreme Court, in United States v. Windsor, struck down part of DOMA, holding that it “violates basic due process and equal protection principles applicable to the Federal Government.”
Justice Anthony M. Kennedy wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. wrote a dissenting opinion, as did Justice Antonin Scalia, whose opinion was joined by Justice Clarence Thomas and Justice Roberts in part. Justice Samuel A. Alito Jr. filed another dissenting opinion, which Justice Thomas joined in part.