Interesting how this will eventually affect US citizens’ rights to petition for their same-sex married partner to come to the United States. Same-sex marriage is legal in Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden.
U.S., in Shift, Sees Marriage Act as Violation of Gay Rights
By CHARLIE SAVAGE and SHERYL GAY STOLBERG
Published: February 23, 2011
WASHINGTON — President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.
Attorney General Eric H. Holder Jr. sent a letter to Congress on Wednesday saying that the Justice Department will now take the position in court that the act should be struck down as a violation of same-sex couples’ rights to equal protection under the law.
“The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law,” a crucial provision of the act is unconstitutional, Mr. Holder wrote.
The move is sure to be welcomed by gay-rights advocates, who had often criticized Mr. Obama for moving too slowly in his first two years in office to address issues that concern them. Coming after the administration successfully pushed late last year for repeal of the military’s ban on gay men and lesbians serving openly, the change of policy on the marriage law could intensify the long-running political and ideological clash over same-sex marriage as the 2012 presidential campaign approaches.
The government’s new position could have far-reaching implications for the rights of gays and lesbians that extend beyond the Defense of Marriage Act, legal scholars said. Gay rights advocates hailed it as a breakthrough.
“It’s a monumentally important decision,” said Tobias B. Wolff, a law professor at the University of Pennsylvania who advised the Obama campaign on gay rights issues.
“The Justice Department and the president have taken the position on behalf of the United States government that discrimination against gay and lesbian people in all cases is presumptively unconstitutional,” he said. “It’s the first time the United States government has ever embraced that position, and if the courts agree, it will help to eradicate all of the various forms of discrimination that gay and lesbian people suffer around the country.”
The president has long said he opposes the Defense of Marriage Act, even as his administration has until now worked to uphold the act’s constitutionality. He has also favored civil unions over gay marriage, much to the consternation of the gay rights advocates who generally support him, but has also said on several recent occasions that his views on gay marriage are “evolving.”
Wednesday’s announcement seemed, to many, to bring him one step closer to reversing his position on gay marriage.
But with gay rights advocates agitating for such a reversal, Mr. Obama has steadfastly resisted talking about a timetable for one. Mr. Wolff said the announcement on Wednesday should give Mr. Obama “a bit more space in his relationship with the LGBT community to come to a decision about that issue in his own time.”
Inside the White House, the discussion about how the Justice Department should handle the Defense of Marriage Act case reached the highest levels. Bob Bauer, Mr. Obama’s White House counsel and a one-time lawyer for the Human Rights Campaign, a leading gay advocacy organization, was deeply involved, as was Valerie Jarrett, the president’s senior adviser, who is his liaison to gay rights groups and is viewed as strongly supportive of their causes.
While Mr. Obama has long argued that the Defense of Marriage Act is bad policy and has urged Congress to repeal it, his administration has also sent Justice Department lawyers into court to defend the statute’s constitutionality.
The new position will require the administration to file new briefs in such litigation, including a major case now pending before the United States Court of Appeals for the First Circuit, in Boston.
Congress may decide to appoint its own lawyers to defend the law, or outside groups may try to intervene in the cases in order to mount legal arguments in the law’s defense. Mr. Holder said that the administration would continue to enforce the act unless and until Congress repeals it, or a court delivers a “definitive verdict against the law’s constitutionality.”
“Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases,” he wrote. “We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.”
The decision to change position grew out of an internal administration policy argument, first reported by The New York Times in January, over how to respond to two lawsuits filed late last year in New York.
Citing an executive-branch duty to defend acts of Congress when plausible arguments exist that they are constitutional, the Obama administration had previously argued that legal challenges to the Defense of Marriage Act should be dismissed.
But those lawsuits were filed in circuits that had precedents saying that when gay people say a law infringes on their rights, judges should use a test called “rational basis” to evaluate that claim. Under that standard, the law is presumed to be constitutional, and challengers must prove that there is no conceivable rational government basis for enacting it, a hard standard for challengers to meet.
But the new lawsuits were filed in districts covered by the appeals court in New York. That court has no precedent establishing which legal test judges should use when evaluating claims that a federal law violates gay people’s rights.
That vacuum meant that the administration’s legal team had to perform its own analysis of whether gay people were entitled to the protection of a test known as “heightened scrutiny.” Under that test, it is much easier to challenge laws that unequally affect a group, because the test presumes that such laws are unconstitutional, and they may be upheld only if the lawmakers’ purpose in enacting them served a compelling governmental interest.
In his letter, Mr. Holder said the administration legal team had decided that gay people merited the protection of the “heightened scrutiny” test, and that under that standard, the Defense of Marriage Act was impossible to keep defending as constitutional.