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Constitutional Law

Despite Obama Decision to Reject DOMA, Feds Will Still Fight Lawyer’s Same-Sex Benefits Case

Posted Mar 1, 2011 8:25 PM CDT
By Martha Neil

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Following news last week that President Barack Obama had decided the Defense of Marriage Act is an unconstitutional violation of equal protection comes news this week that the revised policy may be narrower than some onlookers had initially thought.

Although the Department of Justice is reportedly reversing its previous position in two cases in the Boston-based 1st U.S. Circuit Court of Appeals and the New York City-based 2nd U.S. Circuit Court of Appeals, the DOJ will continue to oppose a claim by a lesbian lawyer who works for the San Francisco-based 9th U.S. Circuit Court of Appeals that her same-sex partner is entitled to federal benefits, according to the Associated Press.

This distinction, at least as far as attorney Karen Golinski's case is concerned, appears to turn on a DOJ argument that executive power rather than the DOMA is the controlling legal authority, according to Reuters.

It is presently unclear exactly how the DOJ is interpreting a distinction made by Attorney General Eric Holder, when announcing the new policy last week, between the department's present position of refusing to argue in court that the DOMA is constitutional yet continuing to uphold the executive branch's duty to enforce the law.

Additional and related coverage:

ABAJournal.com: "9th Cir. Lawyer Sues Obama Admin Over Withheld Benefits for Same-Sex Spouse"

ABAJournal.com: "Obama Concludes Federal Law Banning Recognition of Same-Sex Marriage Is Unconstitutional"

Chicago Tribune: "Obama administration shifts legal stance on gay marriage"

San Francisco Chronicle: "Same-sex marriage: Courts expected to heed Obama move"

Slate: "The Obama administration's new DOMA position may help a handful of gay couples at the expense of all the rest"

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