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.

Jen and Dawn Barbouroske (l.) pose with their daughters McKinley and Bre following a news conference with married same-sex couples, on legislation to repeal the Defense of Marriage Act (DOMA) outside the Capitol Hill in Washington, DC in 2009.

In a major policy shift on gay rights, the Obama administration announced on Wednesday that it would no longer defend the constitutionality of the Defense of Marriage Act in cases pending in federal court.

Attorney General Eric Holder made the announcement in a written statement and in a letter sent to House Speaker John Boehner.

It said both he and President Obama had concluded that the Defense of Marriage Act (DOMA) unconstitutionally discriminates against same-sex couples who are in marriages that are legally recognized by their state governments.

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“The president has instructed the [Justice] Department not to defend the statute in such cases,” Mr. Holder said in his statement. “I fully concur with the president’s determination.”

Speaker Boehner responded through a spokesman, questioning the timing of the announcement.

“While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,” said Boehner spokesman Michael Steel.

Gay and lesbian married couples have filed lawsuits challenging the constitutionality of DOMA provisions that block same-sex married couples from receiving the same federal benefits and protections available to heterosexual married couples.

Last summer, a federal judge in Massachusetts declared the law unconstitutional in two cases. Those decisions are now on appeal at the First US Circuit Court of Appeals in Boston.

Five states and the District of Columbia recognize same-sex marriages. Twenty-nine states ban it in their state constitutions, and 13 others prohibit it by state statute.

DOMA was signed into law in 1996 by President Bill Clinton. It passed the House 342 to 67 and passed the Senate 85 to 14.

Justice Department lawyers are employed in part to defend challenged federal laws. But provisions allow the department to back out of certain cases.

It is unclear who, in the absence of the Justice Department, will defend the statute and whether they will have the necessary legal standing to mount such a defense.

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.”

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.”

“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.

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