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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In his letter to Speaker Boehner, Holder said Justice Department lawyers would “notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in [pending DOMA] cases.”Skip to next paragraph
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Holder said the executive branch is not abandoning DOMA. He said Mr. Obama has instructed his administration that it must continue to enforce the 1996 law and comply with the statute’s requirements – unless or until it is repealed by Congress or struck down as unconstitutional by the judiciary.
Section 3 of DOMA restricts the use of the word “marriage” to a legal union between one man and one woman as husband and wife.
The administration’s action was prompted by approaching deadlines in two pending federal cases – in Connecticut and New York. In both lawsuits, same-sex married couples are charging that DOMA’s ban on federal benefits to those in gay marriages violates the Constitution’s requirement of equal treatment. Justice Department lawyers assigned to defend the statute had until March 11 to file their opening briefs in the cases.
“In the two years since this administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court,” Holder said. Each of those cases, he said, had been filed in a jurisdiction where the binding legal precedent established a relatively easy standard to uphold the challenged law.
Department lawyers were able to make “reasonable arguments” within that jurisdiction’s law, he said.
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.”