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Publication Date


Publication Citation

81 Fordham Law Review 599 (2012)


When President Barack Obama announced his view that the Defense of Marriage Act1 (DOMA) violated the Fifth Amendment’s guarantee of equal protection,2 he joined a storied line of Presidents who have acted upon their own constitutional determinations in the absence of, and on rare occasion contrary to, those of the U.S. Supreme Court. How best to proceed in the face of a federal statute the President considers unconstitutional can involve complex judgments, as was true of the difficult decision to enforce but not defend DOMA. Ordinarily the Department of Justice should adhere to its tradition of defending statutes against constitutional challenge, but I believe that DOMA constituted a rare exception. To defend DOMA’s discrimination would have required making arguments that the Obama Administration did not consider reasonable and that in their very making would have exacerbated the constitutional harm to the equality and dignity of Americans on the basis of sexual orientation. President Obama and Attorney General Eric Holder acted appropriately and admirably in choosing instead to present their actual views on sexual orientation discrimination, just as their predecessors did on racial segregation, thereby leaving DOMA’s defense to Congress and the ultimate resolution to the courts.