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February 25, 2011

Justice Dept. will stop defending DOMA in court

Washington, D.C.--President Barack Obama’s administration announced its view on February 23 that part of the federal Defense of Marriage Act is unconstitutional and the Department of Justice will stop defending it in court.

Under federal law, if the administration refuses to defend an existing law in court, it must notify Congress. The Justice Dept. did so in a letter to House Speaker John Boehner of Ohio.

“I am writing to advise you of the executive branch’s determination and to inform you of the steps the department will take in two pending DOMA cases to implement that determination,” Attorney General Eric Holder wrote. “This is the rare case where the proper course is to forgo the defense of this statute.”

The two cases were filed last November in New York, four months after a federal judge in Massachusetts found DOMA unconstitutional in two other cases. That ruling is under appeal.

“Moreover, the department has declined to defend a statute ‘in cases in which it is manifest that the president has concluded that the statute is unconstitutional,’ as is the case here,” he continues.

The letter says that the administration will no longer defend Section 3 of the Defense of Marriage Act. The Justice Dept. had previously defended it against challenges.

Section 3 defines marriage as between a man and a woman only. It bars the federal government from recognizing any same-sex marriage for any purpose, including taxes, Social Security, federal employee benefits or immigration, no matter how legal the marriage is in the couple’s home state. (The law’s other half, Section 2, allows states to refuse recognition of same-sex marriages from other states.)

The earlier DOMA cases are in circuits that have already set precedents on whether laws that discriminate by sexual orientation should receive strict scrutiny in the courts, while the New York cases are in the Second Circuit, which does not have such a precedent.

Obama says higher standard applies

“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, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply,” Holder wrote. “After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”

“The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” he noted. “I fully concur with the president’s determination.”

The administration has drawn criticism for defending both DOMA and “don’t ask, don’t tell” in court while working for their legislative repeal, even though Obama has stated his opposition to both laws.

“This is a monumental decision for the thousands of same-sex couples and their families who want nothing more than the same rights and dignity afforded to other married couples,” said Human Rights Campaign president Joe Solmonese. “As the president has stated previously, DOMA unfairly discriminates against Americans and we applaud him for fulfilling his oath to defend critical constitutional principles.”

“In the 15 years since DOMA was made law, it has hurt untold numbers of gay and lesbian Americans, depriving them of the rights to enjoy the full benefits of marriage and forcing them to live as second-class citizens,” said Michael Keegan, president of People for the American Way. “The president has chosen to defend the Constitution of the United States over a discriminatory and clearly unconstitutional law. That decision should be commended.”

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