Paul Benjamin Linton, Special Counsel to The Thomas More Society, wrote this legal memo entitled “A Response to the Administration’s Decision Not to Defend Section 3 of the Defense of Marriage Act.” An excerpt from that memo follows.
On February 23, 2011, Attorney General Eric Holder sent letters to the Speaker of the House of Representatives and other leaders of Congress informing them that, “[a]fter careful consideration, including a 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’), U.S.C. § 7,1 as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.” Letter of Attorney General Eric Holder, February 23, 2011, to Hon. John A. Boehner, Speaker, United States House of Representatives 1 (Holder Letter).
As a consequence of the President’s determination that Section 3 of DOMA is unconstitutional, the Attorney General, at the President’s direction, expressed his intention to instruct the Department of Justice attorneys representing the Government in two recently filed challenges to Section 3 of DOMA in New York and Connecticut2 “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.” Holder Letter at 5-6. “Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct the 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.” Id. at 6. That “other pending DOMA litigation” includes three appeals now under review in the First Circuit Court of Appeals challenging Section 3 as applied to lawfully married same-sex couples residing in Massachusetts3. This paper is a response to the Attorney General’s letter and his (and the President’s) explanation for not defending the Defense of Marriage Act.
The President’s Authority Not To Defend Acts Of Congress
Whether the President has the authority to refuse to defend an Act of Congress (and, if so, when it is appropriate to use such authority) is a controversial matter. In his letter of February 23, 2011, Attorney General Holder referenced both a law review essay by a former Solicitor General, see Seth P. Waxman, Defending Congress, 79 N.C.L.REV. 1073 (2001), and a March 22, 1996, letter from Assistant Attorney General Andrew Fois to Senator Orrin Hatch, providing numerous examples in which the Department of Justice has refused to defend an Act of Congress4. Holder Letter at 5. Mr. Fois acknowledged in his letter that the Department of Justice has not developed formal guidelines for determining when an Act of Congress should not be defended.
1 DOMA Section 3 states: “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.
2 Windsor v. United States, No. 1:10-CV-8435 (S.D.N.Y.); Pedersen v. Office of Personnel Management, No. 3:10-CV-1750 (D. Conn).
3 Commonwealth of Massachusetts v. United States Dep’t of Health & Human Services, Gill v. Office of Personnel Management, Hara v. Office of Personnel Management, Consolidated
Nos. 10-2204, 10-2207 and 10-2214.
4 In addition, the letter enclosed a list provided by the Senate Legal Counsel indexing virtually all instances from 1975 to 1993 in which the Department of Justice represented that it would decline to defend the constitutionality of a statute, or where the Executive Branch determined that it would not enforce or implement a statute that it believed to be unconstitutional.