In Shift, U.S. Says Marriage Act Blocks Gay Rights

New York Times, February 23rd 2011
Charlie Savage, Sheryl Gay Stolberg

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.

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.”

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