In another victory for sexual orientation rights, President Obama announced yesterday through the Attorney General’s office that his administration would not defend the Defense of Marriage Act in court.


The Defense of Marriage Act is a Clinton-era law that defines marriage as a legal union between a man and a woman.  It also lets states disregard marriages between same-sex couples made in other states.

On February 23, 2011, Attorney General Eric Holder sent a letter to Speaker of the House John Boehner describing the President’s conclusion that laws discriminating on the basis of sexual orientation are subject to “heightened-scrutiny” review.

In defending the law under equal protection principles, heightened-scrutiny requires the Government to establish that the classification is “substantially related to an important government objective.”  Clark v. Jeter, 486 U.S. 456, 461 (1988).

After providing a short history of discrimination in the context of sexual orientation, President Obama concluded that the Defense of Marriage Act “fails to meet that standard and is therefore unconstitutional.”

Consequently, the Department of Justice will not defend the act in two district court cases pending in the Southern District of New York and the District of Connecticut.

At the same time, consistent with the obligations of the Executive Branch, Executive agencies will still be instructed to comply with the Defense of Marriage Act until it is repealed or a court finds that it is unconstitutional.

The Attorney General also stated that if it wanted, Congress was welcome to join the litigation on its own behalf to defend the statute.

The Attorney General’s letter may not seem like a large gesture, but its effects will be far reaching.

For one, it means that the Executive Branch will no longer defend the Defense of Marriage Act in new cases.

It provides the district courts (and Circuit Courts that have not yet addressed this issue) with a legal rationale to invalidate the Defense of Marriage Act.

It is a strong political gesture in favor of equal rights with regard to sexual orientation.  Courts may doubly pause before defending the Defense of Marriage Act if they believe that the law is also unpopular as well as unconstitutional.  Judges aren’t really supposed to do that, but they are only human and I suspect it must enter their calculus somewhere.

President Obama is certainly subject to criticism on a number of fronts; but his administration has done a great deal for sexual orientation rights, more than any other president.


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