A key provision of the Defense of Marriage Act (DOMA) is unconstitutionally biased and will no longer be defended in court by Justice Department attorneys, Attorney General Eric Holder announced Wednesday.
But he assured members of Congress that the Clinton-era federal statute, which defines marriage as between only a “man and a woman” as “husband and wife,” will continue to be enforced by the executive branch until it is either repealed by legislators or definitely voided by the courts. Section 3 of the statute, which limits the definition of marriage to opposite-sex partners, precludes spouses in same-sex marriages from receiving certain federal benefits to which spouses in traditional marriages are entitled.
Until now, federal attorneys have defended the validity of Section 3 in court as a legitimate expression of congressional authority. But President Obama himself ordered the reversal of executive branch policy and position after determining that the marriage classifications contained in the statute could not survive under the strictest standards of judicial review. “I fully concur” with that decision, Holder said in the statement issued in connection with two pending federal challenges to the DOMA in the 2nd U.S. Circuit Court of Appeals.
In announcing the surprise move, Holder noted that Obama had “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,” which Section 3 of the Marriage Act could not meet. Consequently, the attorney general wrote, the Department of Justice will not defend the constitutionality of Section 3 as applied to same-sex married couples in the two cases filed in the 2nd Circuit. “We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation,” he said.
The fate of the Marriage Act will in turn determine the fate of other federal policies and practices. For example, even after the Pentagon ends its controversial “Don’t ask, don’t tell” termination policy, which excludes openly gay military service members, the same-sex spouses of soldiers would not receive the same benefits as the opposite-sex spouses of soldiers — unless DOMA were repealed or struck down by the federal courts. In July, a noted federal trial judge in Massachusetts, a Nixon appointee, declared Section 3 unconstitutional. That case is now before the 1st U.S. Circuit Court of Appeals.
The attorney general also informed Congress of the change in policy “so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.” And it is likely that legislators will take the Justice Department up on its offer as they seek to defend the law, which was enacted in part to prevent the recognition and spread of same-sex marriage among the states. Currently, five states and the District of Columbia recognize the validity of same-sex marriage. The issue in California is on appeal.
A spokesman for House Speaker John Boehner said that “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,” particularly at a time when “Americans want Washington to focus on creating jobs and cutting spending.”
Supporters of same-sex marriage were heartened by the decision. The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender civil rights organization, was quick to praise President Obama’s step. “DOMA unfairly discriminates against Americans and we applaud [the president] for fulfilling his oath to defend critical constitutional principles,” said HRC President Joe Solmonese.
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