US will no longer defend Defense of Marriage Act in court
The president and attorney general conclude the 1996 Defense of Marriage Act unconstitutionally discriminates against same-sex married couples. Decision is a major policy shift on gay rights.
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Department lawyers were able to make “reasonable arguments” within that jurisdiction’s law, he said.Skip to next paragraph
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In contrast, Holder said, the two new cases were filed in a federal circuit that has no binding legal standard from a prior DOMA case. “In these cases, the administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard … should apply,” he said.
“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors … classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder said.
What that means in practical terms is that lawyers seeking to uphold DOMA’s forced inequality must be prepared to more fully justify the government’s preferential treatment of heterosexual married couples.
Gay rights activists and supporters hailed the administration’s action as important and historic.
Rea Carey, executive director of the National Gay and Lesbian Task Force, called it “a tremendous step toward recognizing our common humanity and ending an egregious injustice against thousands of loving, committed couples who simply want the protections, rights, and responsibilities afforded other married couples.”
Democratic House leader Nancy Pelosi called the administration’s announcement “a victory for civil rights, fairness, and equality for the LGBT community and all Americans.”
“I commend [the president] for taking this bold step forward to ensure the federal government is no longer in the business of defending an indefensible statute,” she said.
DOMA supporters denounced the president’s decision. “Obama’s actions today are an unprecedented grab for power and perhaps the most audacious in the 235-year history of the American republic,” said Andrea Lafferty of the Traditional Values Coalition.
“This only confirms what has appeared to be the case in several recent lawsuits. In those defense-of-marriage cases, the [Justice Department] has undermined rather than defended DOMA,” said Austin Nimocks of the Alliance Defense Fund.
“The American people have a right to expect their laws to be defended by the very people whose job it is to do so: their government officials,” he said. “But the administration is making clear that they are simply not going to defend marriage."
The two lawsuits referred to by the administration involve litigation seeking equal treatment by same-sex married couples.
The New York-based case alleges the unequal imposition of the federal estate tax against a couple who had been together for 44 years. Edith Windsor and Thea Spyer were legally married in Toronto, Canada, in 2007, but when Ms. Spyer died, the federal government cited DOMA to reject the legitimacy of their marriage.
The Internal Revenue Code does not impose an estate tax upon the death of a spouse. Canada and New York State both recognized the marriage – but not the federal government. Ms. Windsor was ordered to pay more than $350,000 in a federal estate tax that would not have been imposed on an opposite-sex couple.
The Connecticut lawsuit is filed on behalf of five couples who were allegedly denied federal insurance and other employment benefits because DOMA blocked any recognition of their same-sex marriages.
“Each of the plaintiffs has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to them if their spouses were of the opposite sex,” the suit says in part.