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In Shift, U.S. Says Marriage Act Blocks Gay Rights
By CHARLIE SAVAGE and SHERYL GAY STOLBERG
Published: February 23, 2011
WASHINGTON — President Obama, in a striking legal and political shift, has determined that the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — is unconstitutional, and has directed the Justice Department to stop defending the law in court, the administration said Wednesday.
Advocates of same-sex marriage hailed the president's decision; critics called it a politicization of the Justice Department.
Attorney General Eric H. Holder Jr. announced the decision in a letter to members of Congress. In it, he said the administration was taking the extraordinary step of refusing to defend the law, despite having done so during Mr. Obama’s first two years in the White House.
“The president and I have concluded that classifications based on sexual orientation” should be subjected to a strict legal test intended to block unfair discrimination, Mr. Holder wrote. As a result, he said, a crucial provision of the Defense of Marriage Act “is unconstitutional.”
Conservatives denounced the shift, gay rights advocates hailed it as a watershed, and legal scholars said it could have far-reaching implications beyond the marriage law. For Mr. Obama, who opposes same-sex marriage but has said repeatedly that his views are “evolving,” there are political implications as well. Coming on the heels of his push for Congress to repeal the “don’t ask, don’t tell” law barring the military from allowing gay people to serve openly, the administration’s move seems likely to intensify the long-running cultural clash over same-sex marriage as the 2012 political campaign is heating up.
“This is a great step by the Obama administration and a tipping point for the gay rights movement that will have ripple effects in contexts beyond the Defense of Marriage Act,” said Anthony D. Romero, the executive director of the American Civil Liberties Union. “It will reach into issues of employment discrimination, family recognition and full equality rights for lesbian and gay people.”
But some conservatives questioned Mr. Obama’s timing and accused him of trying to change the subject from spending cuts to social causes. Others portrayed the Justice Department’s abandonment of the Defense of Marriage Act as an outrageous political move that was legally unjustified.
“It is a transparent attempt to shirk the department’s duty to defend the laws passed by Congress,” Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee, said in a statement. “This is the real politicization of the Justice Department — when the personal views of the president override the government’s duty to defend the law of the land.”
While the issue at hand is whether gay couples in the eight states that already legally recognize same-sex marriage may be discriminated against by the federal government, the administration’s decision raised anew the more fundamental question of whether same-sex couples should have a right to marry.
Mr. Obama takes a nuanced position on same-sex marriage, and the White House was careful to say on Wednesday that his position on that issue — he favors civil unions — remains unchanged. Many advocates of same-sex marriage, though, perceived the administration’s new legal stance as a signal that Mr. Obama would soon embrace their cause.
Polls show the public is broadly supportive of equal rights for gay people — with the exception of the right to marry. Nearly 90 percent of Americans favor equality of opportunity in the workplace, and more than 60 percent favored overturning “don’t ask, don’t tell.” But the public remains evenly divided on same-sex marriage.
Tobias B. Wolff, a University of Pennsylvania law professor who has advised Mr. Obama on gay rights issues, said Wednesday’s decision may have bought the president some time with gay rights leaders, many of whom have been deeply critical of his position on the marriage issue.
“He has said that he has been struggling with the issue, and I think he has earned a certain benefit of the doubt,” Mr. Wolff said.
But the move also sharpened criticism of Mr. Obama from the right. Senator Charles E. Grassley, Republican of Iowa, said the shift was “clearly based more on politics than the law.”
While Mr. Obama has called for Congress to repeal the marriage law, in court his administration has supported the constitutional right of Congress to enact such a measure. But his legal team was forced to take a second look at the sustainability of that position because of two recent lawsuits challenging the statute. The Justice Department must file responses to both suits by March 11.
For technical reasons, it would have been far more difficult — both legally and politically — for the administration to keep arguing that the marriage law is constitutional in these new lawsuits. To assert that gay people do not qualify for extra legal protection against official discrimination, legal specialists say, the Justice Department would most likely have had to conclude that they have not been historically stigmatized and can change their orientation.
The development floored Edith S. Windsor, an 81-year-old widow who filed one of the two new lawsuits in New York. Ms. Windsor is seeking the return of about $360,000 in estate taxes she had to pay because the federal government did not recognize their marriage when her wife died two years ago. The couple married in Toronto.
“It’s almost overwhelming,” Ms. Windsor said in an interview. “I don’t know what it means in terms of what follows. But the very fact that the president and the Department of Justice are making such a statement is mind-blowing to anybody gay or anybody who is related to anybody gay. I think it removes a great deal of the stigma. It’s just great.”
If the courts agree with the administration’s view of how to evaluate gay-rights claims of official discrimination, it could open the door to new legal challenges to many other government policies that treat gay people unequally — including federal laws that make it easier for noncitizen spouses to apply for legal residency and state laws governing who may adopt a child.
While it is rare for an administration not to defend the constitutionality of a statute, it happens occasionally. Congress may opt to appoint its own lawyers to defend the law, or outside groups may try to intervene. And while the Justice Department’s lawyers will no longer defend the law in court, Mr. Holder said the administration would continue to enforce the act unless Congress repeals it or a court delivers a “definitive verdict against the law’s constitutionality.”
The administration’s change in position grew out of an internal debate, first reported in January by The New York Times, over how to respond to the two lawsuits filed last year that challenged the 1996 act.
The same-sex marriage reversal followed weeks of high-level deliberations, first in the Justice Department’s Civil Division, and then at the White House.
The lawsuits were brought by people including Ms. Windsor, whose same-sex marriages are recognized as legal by state law, but who have been denied certain federal benefits granted to opposite-sex married couples. The plaintiffs, represented by the A.C.L.U. and Glad — Gay and Lesbian Advocates and Defenders — contended that such treatment violated their right to equal protection of the law.
In previous cases, the Justice Department defended the act by citing precedents that directed judges to uphold any law that treats gay people unequally unless a challenger can prove there is no conceivable rational basis for the act. But the two new cases were filed in districts covered by the federal appeals court in New York, one of the few circuits that lack such a precedent.
As a result, the administration, for the first time, confronted the difficult question of how much protection gay people, as a group, should receive against official discrimination.
Mr. Holder said Justice and White House officials had concluded that gay people qualified for the greater protection afforded to a handful of classes, like race or gender. Under that test, discrimination is presumed to be unconstitutional, and Mr. Holder said it was untenable to keep defending the marriage law.
By CHARLIE SAVAGE and SHERYL GAY STOLBERG
Published: February 23, 2011
WASHINGTON — President Obama, in a striking legal and political shift, has determined that the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — is unconstitutional, and has directed the Justice Department to stop defending the law in court, the administration said Wednesday.
Advocates of same-sex marriage hailed the president's decision; critics called it a politicization of the Justice Department.
Attorney General Eric H. Holder Jr. announced the decision in a letter to members of Congress. In it, he said the administration was taking the extraordinary step of refusing to defend the law, despite having done so during Mr. Obama’s first two years in the White House.
“The president and I have concluded that classifications based on sexual orientation” should be subjected to a strict legal test intended to block unfair discrimination, Mr. Holder wrote. As a result, he said, a crucial provision of the Defense of Marriage Act “is unconstitutional.”
Conservatives denounced the shift, gay rights advocates hailed it as a watershed, and legal scholars said it could have far-reaching implications beyond the marriage law. For Mr. Obama, who opposes same-sex marriage but has said repeatedly that his views are “evolving,” there are political implications as well. Coming on the heels of his push for Congress to repeal the “don’t ask, don’t tell” law barring the military from allowing gay people to serve openly, the administration’s move seems likely to intensify the long-running cultural clash over same-sex marriage as the 2012 political campaign is heating up.
“This is a great step by the Obama administration and a tipping point for the gay rights movement that will have ripple effects in contexts beyond the Defense of Marriage Act,” said Anthony D. Romero, the executive director of the American Civil Liberties Union. “It will reach into issues of employment discrimination, family recognition and full equality rights for lesbian and gay people.”
But some conservatives questioned Mr. Obama’s timing and accused him of trying to change the subject from spending cuts to social causes. Others portrayed the Justice Department’s abandonment of the Defense of Marriage Act as an outrageous political move that was legally unjustified.
“It is a transparent attempt to shirk the department’s duty to defend the laws passed by Congress,” Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee, said in a statement. “This is the real politicization of the Justice Department — when the personal views of the president override the government’s duty to defend the law of the land.”
While the issue at hand is whether gay couples in the eight states that already legally recognize same-sex marriage may be discriminated against by the federal government, the administration’s decision raised anew the more fundamental question of whether same-sex couples should have a right to marry.
Mr. Obama takes a nuanced position on same-sex marriage, and the White House was careful to say on Wednesday that his position on that issue — he favors civil unions — remains unchanged. Many advocates of same-sex marriage, though, perceived the administration’s new legal stance as a signal that Mr. Obama would soon embrace their cause.
Polls show the public is broadly supportive of equal rights for gay people — with the exception of the right to marry. Nearly 90 percent of Americans favor equality of opportunity in the workplace, and more than 60 percent favored overturning “don’t ask, don’t tell.” But the public remains evenly divided on same-sex marriage.
Tobias B. Wolff, a University of Pennsylvania law professor who has advised Mr. Obama on gay rights issues, said Wednesday’s decision may have bought the president some time with gay rights leaders, many of whom have been deeply critical of his position on the marriage issue.
“He has said that he has been struggling with the issue, and I think he has earned a certain benefit of the doubt,” Mr. Wolff said.
But the move also sharpened criticism of Mr. Obama from the right. Senator Charles E. Grassley, Republican of Iowa, said the shift was “clearly based more on politics than the law.”
While Mr. Obama has called for Congress to repeal the marriage law, in court his administration has supported the constitutional right of Congress to enact such a measure. But his legal team was forced to take a second look at the sustainability of that position because of two recent lawsuits challenging the statute. The Justice Department must file responses to both suits by March 11.
For technical reasons, it would have been far more difficult — both legally and politically — for the administration to keep arguing that the marriage law is constitutional in these new lawsuits. To assert that gay people do not qualify for extra legal protection against official discrimination, legal specialists say, the Justice Department would most likely have had to conclude that they have not been historically stigmatized and can change their orientation.
The development floored Edith S. Windsor, an 81-year-old widow who filed one of the two new lawsuits in New York. Ms. Windsor is seeking the return of about $360,000 in estate taxes she had to pay because the federal government did not recognize their marriage when her wife died two years ago. The couple married in Toronto.
“It’s almost overwhelming,” Ms. Windsor said in an interview. “I don’t know what it means in terms of what follows. But the very fact that the president and the Department of Justice are making such a statement is mind-blowing to anybody gay or anybody who is related to anybody gay. I think it removes a great deal of the stigma. It’s just great.”
If the courts agree with the administration’s view of how to evaluate gay-rights claims of official discrimination, it could open the door to new legal challenges to many other government policies that treat gay people unequally — including federal laws that make it easier for noncitizen spouses to apply for legal residency and state laws governing who may adopt a child.
While it is rare for an administration not to defend the constitutionality of a statute, it happens occasionally. Congress may opt to appoint its own lawyers to defend the law, or outside groups may try to intervene. And while the Justice Department’s lawyers will no longer defend the law in court, Mr. Holder said the administration would continue to enforce the act unless Congress repeals it or a court delivers a “definitive verdict against the law’s constitutionality.”
The administration’s change in position grew out of an internal debate, first reported in January by The New York Times, over how to respond to the two lawsuits filed last year that challenged the 1996 act.
The same-sex marriage reversal followed weeks of high-level deliberations, first in the Justice Department’s Civil Division, and then at the White House.
The lawsuits were brought by people including Ms. Windsor, whose same-sex marriages are recognized as legal by state law, but who have been denied certain federal benefits granted to opposite-sex married couples. The plaintiffs, represented by the A.C.L.U. and Glad — Gay and Lesbian Advocates and Defenders — contended that such treatment violated their right to equal protection of the law.
In previous cases, the Justice Department defended the act by citing precedents that directed judges to uphold any law that treats gay people unequally unless a challenger can prove there is no conceivable rational basis for the act. But the two new cases were filed in districts covered by the federal appeals court in New York, one of the few circuits that lack such a precedent.
As a result, the administration, for the first time, confronted the difficult question of how much protection gay people, as a group, should receive against official discrimination.
Mr. Holder said Justice and White House officials had concluded that gay people qualified for the greater protection afforded to a handful of classes, like race or gender. Under that test, discrimination is presumed to be unconstitutional, and Mr. Holder said it was untenable to keep defending the marriage law.
Pray for Death of DoMA
the feds have no authority to regulate marriage
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