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Legal and Political factors as Obama ceases defending DOMA

As has been widely reported, the Obama Administration has announced it will no longer defend section 3 of the Defense of Marriage Act (DOMA).  This is the statute that defines, for purposes of federal law, that a marriage is a legal union of one man and one woman.  In its application, same-sex couples who were legally married under state law were denied the rights and privileges afforded to other married couples under federal law - such as ability to file tax returns jointly as a married couple or to claim Social Security benefits as a surviving spouse, for example.

Attorney General Eric Holder explained the reasons for this decision in a letter to House Speaker John Boehner on February 23, 2011.  In previous legal challenges against DOMA, the Justice Department during the Obama Administration did defend DOMA against challenges such as those filed by the Commonwealth of Massachusetts and by same-sex couples residing there.  The distinction made by Holder in those cases was that in that part of the country, there was binding precedent by the regional Circuit Court of Appeals stating that DOMA was constitutional.  Obama and Holder now state that there are new lawsuits that have been filed in New York State which is in the 2nd Circuit where there are no such legal precedents.  Holder stated that given the lack of binding precedent in the 2nd Circuit, the Justice Department would be called upon to take a position on the matter.  Obama and Holder have determined that there position is that DOMA violates the rights of same-sex couples who are legally married under state law to equal protection of law that is afforded to heterosexual couples married under state law.

Holder argues that gays and lesbians are a politically weak class who do not have the ability to easily obtain redress through the political process to correct this unequal treatment.  Holder also noted that the legislative record from the enactment of DOMA indicates much bias and prejudice regarding gays and lesbians based on opinions of morality rather than meeting legitimate governmental objectives and that it was that sort of treatment that the Equal Protection Clause in the Constitution is aimed at preventing.

Holder has given notice that all Justice Department attorneys in these cases will be directed take the position that the constitutionality of DOMA section 3 must be reviewed with heightened scrutiny - a standard that would be very likely to result in striking down the law - as compared with the rational basis test under which laws are generally upheld if any sort of legitimate governmental interest can be stated to justify the law.

So, what happens now?  This does not mean that DOMA will go undefended.  On the contrary, either chamber of the Congress can have its own attorneys defend the law.  I would anticipate therefore that the Republican-controlled House of Representatives will enter the proceedings with its own attorneys to defend DOMA.  However, the fact that that the Justice Department takes a position that a law is unconstitutional can be quite significant as these cases move forward.

Politically, this is an advantageous move for Obama.  Until now, the Obama Administration's defense of DOMA has been a major irritant to gays and lesbians, who were strong supporters for Obama in the 2008 election.  By now openly arguing that DOMA is unconstitutional, Obama will please his base of support.  Obama will also anger conservatives but they were already against Obama anyway so there is no loss politically there.  In addition, surveys are showing increasing acceptance of the idea of same-sex marriage even among some conservatives who either now accept the idea or see fighting against it as a political liability that marginalizes them.  Among prominent Republicans now supporting same-sex marriage - former Vice President Dick Cheney (whose daughter, Mary is a lesbian); Barbara Bush, the daughter of former President George W. Bush; and Meghan McCain, the daughter of Senator John McCain, Obama's opponent in 2008.

Stay tuned as this legal battle plays out across America.

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