Constitutional Law

Obama Concludes Federal Law Banning Recognition of Same-Sex Marriage Is Unconstitutional


President Obama has concluded that the federal law barring recognition of same-sex marriages is unconstitutional, and has decided the administration will no longer defend the statute in court.

Attorney General Eric Holder explained the president’s decision in a statement released today, according to the Washington Post and Metro Weekly’s Poliglot blog. The New York Times calls the announcement “a striking legal and political shift.”

The administration has previously defended the Defense of Marriage Act in court challenges, but now will assert the law is an equal-protection violation. The decision affects the Justice Department’s stance in two cases pending before the New York City-based 2nd U.S. Circuit Court of Appeals and another pending before the Boston-based 1st U.S. Circuit Court of Appeals, SCOTUSblog reports.

Obama concluded that laws concerning sexual orientation should be subjected to a heightened level of scrutiny in legal challenges claiming discrimination, Holder says. The president believes Section 3 of DOMA, which restricts the definition of marriage to unions between a man and a woman, does not meet the heightened standard and is therefore unconstitutional, according to Holder’s statement.

“Given that conclusion, the president has instructed the [Justice] Department not to defend the statute” in legal challenges to Section 3, Holder says. “I fully concur with the president’s determination.” The executive branch will continue to enforce the law, however, and the Justice Department will work closely with the courts to ensure members of Congress can defend the statute in pending litigation.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA,” Holder says in the statement. “The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. … While both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this administration will no longer assert its constitutionality in court.”

Updated Feb. 24 to include additional coverage.

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