Usually the Justice Department will defend statutes that are challenged in lawsuits against the government, and the Obama Administration has invoked the customary practice to justify its defense of DOMA (as well as the "Don't Ask, Don't Tell" statute) in pending lawsuits. However, says Holder, when the President and DOJ become convinced that a statute is unconstitutional and that there are no longer any legally reasonable arguments that can be made in its defense, it is time to throw in the towel, as it were, and to concede the point. This puts the Department in an odd position, especially when a bill to repeal the statute is pending in Congress but has so far had no real traction. As Holder notes, defending statutes is part of DOJ's obligation to Congress, a co-equal branch of government. And so, Holder says in his letter to Speaker Boehner, the Administration will do everything necessary to facilitate allowing a legal representative of Congress to join the case in defense of DOMA if Congress wants to undertake its defense. While DOJ will continue to represent the government in these pending lawsuits, it will no longer argue that the statute is constitutional.

On the other hand, the President and DOJ do not have authority to unilaterally ignore statutes that are on the books, and so Holder announced that pursuant to the President's direction, the executive branch will continue to abide by Section 3 of DOMA until it is either repealed or finally declared unconstitutional by a court. A final declaration of unconstitutionality by a court would presumably consist of either a decision declaring Section 3 unconstitutional by the Supreme Court or, perhaps, such a ruling by a federal court of appeals as to which Supreme Court review is sought but denied, or perhaps in which the Supreme Court summarily affirms the court of appeals without an opinion.