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February 25, 2011

DOJ Backs Away Again From DOMA

The Department of Justice followed Wednesday’s withdrawal from two DOMA cases in the Second Circuit, including GLAD’s Pedersen v. OPM  by notifying the clerk of the First Circuit that they will also “cease to defend” the two consolidated DOMA cases, Gill v. Office of Personnel Management and Massachusetts v. HHS.

The DOJ has not sent a letter to the Congress declining to defend DOMA in toto in the Gill case, so its determination may only apply to the extent the court determines that heightened scrutiny is the proper standard of review for DOMA’s constitutionality. No matter what happens, the case will proceed with DOJ as the attorneys for the government defendants.

“It is increasingly clear to everyone what has been clear to gay and lesbian families for years - that DOMA’s denial of protections available to all other married families is discriminatory, harmful, and unjustifiable,” said Mary L. Bonauto, GLAD’s Civil Rights Project Director and lead attorney on both Gill and Pedersen.  “DOJ’s acknowledgement of this is momentous.  At the same time, we know this isn’t the end of the road.”

In a letter to the court Assistant Attorney General Tony West writes that “the Department will cease its defense of Section 3” in cases including Gill and Massachusetts. DOJ also “notifies the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation of those cases”, and that “we will remain parties to the case and continue to represent the interests of the United State throughout the litigation.”

GLAD filed Gill, in which it represents 8 married couples and three widowers, in the U.S District Court in March 2009, and in July 2010, won a ruling that DOMA Section 3 is unconstitutional from U.S. District Court Judge Joseph L. Tauro.  With the case now pending on appeal in the First Circuit, Congress will have an opportunity to decide whether it wants to have its voice heard in the appeal.” 

Consistent with their February 23 letter to Speaker of the House John Boehner, the DOJ seeks to provide Congress “a full and fair opportunity to participate” in the case.  All of the parties, including GLAD, agree that Congress should be given this opportunity, and will request an extension from the court on the briefing schedule to accommodate Congress’s decision-making.