Good News: Obama Stops Defending Indefensible "Marriage Act"

By Irin Carmon  |  February 23, 2011 | 6:42pm
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The Obama Justice Department has announced it will no longer fight for the Defense of Marriage Act in court. Gay rights advocates had long been infuriated that despite the administration’s opposition to it, government lawyers were still defending in court the act that prohibits federal recognition of gay marriage.

A statement from the Attorney General today said, “While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.” A more recent case in the Second Circuit, the statement said, led the President to conclude 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.” Section 3 is the part that defines marriage as “only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

This doesn’t mean that DOMA, which was passed by Congress and signed by Clinton in 1996, is dead. According to The New York Times,

Congress may decide to appoint its own lawyers to defend the law, or outside groups may attempt to intervene in the cases in order to mount legal arguments in the law’s defense. Mr. Holder said that the administration will continue to enforce the act unless and until Congress repeals it, or a court delivers a “definitive verdict against the law’s constitutionality.”

In the meantime, bizarrely, the Justice Department is still expected this week to defend Don’t Ask Don’t Tell in court, despite an Obama-encouraged repeal in Congress. The Log Cabin Republicans, who had sued the government to overturn it before Congress did so, have expressed bafflement. Also, the apparatus to kick gay people out of the military still exists, since the law only takes into effect sixty days after government and military leaders certify repeal.

Still, the overall movement is in the right direction, and with the prodding of gay rights activists, the Obama administration is slowly starting to live up to its promises, in its own way.

Statement Of The Attorney General On Litigation Involving The Defense Of Marriage Act [Justice Department]
Obama Orders End to Defense of Federal Gay Marriage Law [NYT]
‘Don’t Ask, Don’t Tell’ Remains In Effect Months After Passage Of Law To End It [NYT]

 
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