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Obama administration shifts legal stance on gay marriage

The administration announces it will no longer oppose legal challenges to the Defense of Marriage Act, which it says discriminates against gays and therefore can no longer be accepted as reasonable.

February 23, 2011|By David G. Savage and James Oliphant, Washington Bureau
  • Same-sex couple Nowlin Haltom, left, and Michael McKeon hold a sign calling for the repeal of the Defense of Marriage Act outside the County Clerk's Office in Los Angeles. The federal law defines marriage as a legal union between one man and one woman.
Same-sex couple Nowlin Haltom, left, and Michael McKeon hold a sign calling… (Robyn Beck / AFP / Getty Images )

Reporting from Washington — In a major shift on gay rights, the Obama administration said that it would no longer oppose legal challenges to the Defense of Marriage Act, just two months after Congress and the president agreed to repeal the military's ban on openly gay service members.

Atty. Gen. Eric H. Holder Jr. said in a letter to Congress on Wednesday that the administration had determined that the act, which was passed by Congress in 1996, discriminated against gays and therefore could no longer be accepted as reasonable. Holder said that Congress may wish to appoint its own lawyers to defend the law, which bars the federal government from recognizing same-sex marriages or extending them the same benefits granted to heterosexual unions.

Holder said the administration would continue to enforce the law until a final ruling was made, most likely by the Supreme Court.

Even if the administration's view prevails it would not force states to grant equal marriage rights to gays and lesbians. But if that view is accepted by the courts, federal agencies, including the Internal Revenue Service, would be prevented from discriminating against gays and lesbians who are legally married. Its legal rationale might also be used to challenge state bans on gay marriage as an unconstitutional violation of equal rights. Five states and the District of Columbia grant marriage licenses to same-sex couples.

The administration's new stance was hailed as a "monumental turning point in the quest for equality" by Jon W. Davidson, legal director for Lambda Legal, a gay rights group in Los Angeles.

Wednesday's decision means that "virtually all forms of discrimination" based on sexual orientation would be eventually judged unconstitutional, said Brad Sears, executive director of the Williams Institute at UCLA, where gay rights advocates research sexual orientation law.

On Capitol Hill, Republicans were sharply critical. Sen. Orrin G. Hatch (R-Utah) called the decision "deeply disturbing," saying "President Obama's personal policies are trumping his presidential duty."

During the Clinton administration, a Republican-led Congress passed the Defense of Marriage Act to prevent one state's adoption of gay marriage from spreading nationwide. Usually, states are required to honor legal agreements made in another state, including marriage, under the "full faith and credit" clause in the Constitution. In enacting the law, Congress said that neither the states nor the federal government were obliged to recognize a marriage other than "a legal union between one man and one woman."

But in recent years, gays and lesbians who are legally married have challenged the law as a denial of equal rights. In New York, Edith Windsor sued after she received a $350,000 inheritance-tax bill from the IRS after the death of her spouse, Thea Spyer. The two had lived together for 44 years in New York City and were married in Canada in 2007, yet the IRS treated them "as though they were strangers," according to her legal complaint.

Until now, the Obama administration had taken the view that it had a duty to defend all laws, including measures it considered discriminatory, so long as they could be justified as constitutional.

But Holder said the case of Windsor vs. the United States forced the administration to confront, for the first time, the question of whether discrimination against gays and lesbians is presumed to be unconstitutional. In the past, the Supreme Court has struck down several anti-gay laws, including one in Texas that made sex between gays a crime. But the justices have not ruled on whether laws that treat people differently because of their sexual orientation are generally unconstitutional, as are measures that discriminate based on race or gender.

In his letter to House Speaker John A. Boehner (R-Ohio), Holder said the Justice Department would not defend against Windsor's suit in New York or a similar suit in Connecticut.

A spokesman for Boehner criticized the White House for what he characterized as an unnecessary foray into a hot-button social issue.

"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 divides the nation," Boehner aide Michael Steel said.

In a statement from New York, Windsor said, "There are not words to express my feelings today given that President Obama and the Department of Justice have done the right thing by recognizing this fundamental principle that all people and all marriages are entitled to be treated equally under the United States Constitution."

The decision is Obama's boldest so far in favor of gay rights. He opposed gay marriage during the 2008 campaign, and his administration defended in court the policy barring gays from serving openly in the military while arguing that Congress should repeal it.

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