Obama Ceases Defending Federal Marriage Law

By Nathan Black, Christian Post Reporter Wednesday, February 23, 2011

President Barack Obama has instructed the Justice Department not to defend federal law defining marriage as between a man and a woman in two lawsuits.

Though the Obama administration had defended the Defense of Marriage Act since taking office two years ago, the President concluded – "after careful consideration" – that he will "no longer assert its constitutionality in court."

"Much of the legal landscape has changed in the 15 years since Congress passed DOMA," says a statement released by the Department of Justice Wednesday. "The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military's Don't Ask, Don't Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional."

The two lawsuits at issue were filed last November on behalf of same-sex couples in Connecticut, Vermont, New Hampshire and New York. Gay & Lesbian Advocates & Defenders (GLAD) filed Pedersen v. Office of Personnel Management and the American Civil Liberties Union filed Windsor v. United States.

In the first case, couples are challenging the federal government's denial of marriage-related protections in the areas of federal Family Medical Leave Act benefits, private pension plans, social security benefits and employment benefits. GLAD claims five same-sex couples, along with a widower, were denied those protections "solely because of DOMA."

In the latter case, the ACLU claims that the federal government refused to recognize a lesbian couple's marriage and taxed the inheritance one of the women left to the other after passing away. Under federal tax law, a person's assets can be left with the spouse without incurring estate taxes.

The 1996 federal Defense of Marriage Act, enacted under the Clinton administration, defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize same-sex marriages from another state.

Obama has long opposed DOMA and said on several occasions that he was committed to repealing it.

Until now, the Obama administration defended DOMA in federal court because the government was able to advance reasonable arguments for the law based on a rational basis standard – meaning that "laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment."

But the Justice Department argued that with the two recent lawsuits, the law must be subject to a more rigorous standard – under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts. And in this case, DOMA fails to meet that standard and is unconstitutional, Obama concluded.

Justice Department attorneys are being instructed to advise courts in other pending DOMA litigation that a stricter standard should apply and that the Department will cease defense of the federal marriage law.