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Obama Orders End to Defense of DOMA

Described as "unconstitutional"

Today the United States Attorney General Eric H. Holder Jr. sent a letter to Congress indicating that the Justice Department has changed its position on DOMA, the Defense of Marriage Act. The Justice department beginning today will take the position in court, including in two pending cases, that the Defense of Marriage Act should be struck down as a violation of gay couples' rights to equal protection under the law.

In the letter Attorney General Holder states that "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," sections of DOMA are unconstitutional. Specifically, Section 3 of DOMA, U.S.C. S 7, i with respect to same-sex couples who are legally married under state law violates the equal protection component of the Fifth Amendment.

The change in the Justice department's position would appear to be tied specifically to the two cases currently ongoing, and mentioned in the letter. While Obama has described DOMA as a bad policy, he has ordered the Justice Department to defend it in court; this decision would have Justice Department staff arguing against DOMA. It is possible that Congress may decide to appoint its own lawyers, lawyers unaffiliated with Justice to defend the law. External groups will likely continue to defend DOMA and attack same-sex marriage. In the meantime, while DOMA is a statute, the Federal government will have to continue to enforce DOMA until either Congress repeals the act, or a court delivers what Attorney General Holder describes as a "definitive verdict against the law's constitutionality."

You can find additional commentary here and here, in an article about one of the pending cases in the context of real people in the case Pedersen v. OPM and Windsor v. United States.