(WASHINGTON) -- President Obama has instructed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which has since 1996 allowed states to refuse to recognize same-sex partnerships legally recognized in other states.
The announcement was made in a letter from Attorney General Eric Holder to congressional leaders in relation to two lawsuits, Pedersen v. OPM and Windsor v. United States, which challenge a section of DOMA that defines marriage for federal purposes as only between one man and one woman.
President Obama believes that section -- Section 3 -- “is unconstitutional” given the due process clause of the Fifth Amendment, including its equal protection component, Holder wrote, and the president has instructed the Department of Justice to no longer defend the law in those two lawsuits.
President Obama “has made the determination,” Holder wrote, that Section 3 “as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”
DOMA was passed by a Republican House and Senate and signed into law by Democratic President Bill Clinton in 1996. In application the law means same-sex couples are not afforded the same rights as straight couples when it comes to Social Security benefits, hospital visitation and other rights.
Following presidential precedent, the Obama administration has been defending the law even though President Obama has long opposed it.
But now, “under heightened scrutiny,” Holder wrote, the government’s ability to defend the law can no longer be made by “advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.”
That legislative record, Holder wrote, “contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”
Last month, then-White House press secretary Robert Gibbs said that “we can’t declare the law unconstitutional…The president believes, as you said, that this is a law that should not exist and should be repealed. But we, at the same time, have to represent the viewpoint of the defendant.” Gibbs said that “given the current makeup of the Congress,” having DOMA repealed would be :inordinately challenging,”
President Obama told Holder that the executive branch of the government will continue to enforce Section 3 “consistent with the executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.”
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