Administration to stop backing Defense of Marriage Act

WASHINGTON – In a historic shift on gay rights, the Obama administration announced that it believes the Constitution forbids unequal treatment of gays and lesbians in almost all cases, and specifically when it comes to federal benefits for legally married same-sex couples.

Attorney General Eric Holder said in a letter to Congress on Wednesday that the Justice Department would no longer oppose legal challenges to the Defense of Marriage Act. The act, which was passed by Congress in 1996, bars the federal government from recognizing same-sex marriages or extending them the same benefits as heterosexual marriages.

Holder said President Barack Obama had decided that discrimination against gays can no longer be accepted as reasonable. Laws that allow such discrimination “warrant heightened scrutiny” by officials and judges, he said, similar to the scrutiny that courts give to laws “targeting minority groups with a history of discrimination.”

This new stance by the administration was hailed as a “monumental turning point in the quest for equality” by Jon W. Davidson, legal director for Lambda Legal, a gay-rights group in Los Angeles.

On Capitol Hill, Republicans were sharply critical. Sen. Orrin Hatch, R-Utah, called the decision “deeply disturbing. President Obama’s personal policies are trumping his presidential duty.”

It comes just two months after Congress and Obama agreed to repeal the military’s ban on openly gay service members.

The immediate practical effect of the announcement may be limited. Holder said the administration would continue to enforce the law until a final ruling is made, most likely by the Supreme Court.

Longer term, even if the administration’s view prevails it would not force states across the nation to grant equal marriage rights to gays and lesbians. Currently, five states grant marriage licenses to same-sex couples.

But Obama’s position, if accepted by the courts, would prevent federal agencies, including the Internal Revenue Service, from discriminating against gays and lesbians who were legally married. Its legal rationale could also be used to challenge state bans on gay marriage as an unconstitutional violation of equal rights.

Gay rights advocates saw the decision as a breakthrough whose impact will be felt well beyond the dispute over federal benefits. It means “virtually all forms of discrimination” based on sexual orientation will be eventually judged unconstitutional, said Brad Sears, executive director of the Williams Institute at the University of California, Los Angeles.

A Republican-led Congress passed the Defense of Marriage Act to prevent one state’s adoption of gay marriage from spreading nationwide. Usually, states are required to honor legal agreements made in another state, including marriage, under the so-called “full faith and credit” clause in the Constitution. In enacting the law, Congress said neither the states nor the federal government were obliged to recognize a marriage other than “a legal union between one man and one woman.”

But in recent years, the law has been challenged as a denial of equal rights by gays and lesbians who were legally married in their state. In New York, Edie Windsor sued after she received a $350,000 tax bill from the IRS after the death of her spouse, Thea Spyer. The two had lived together for 44 years in New York City and were married in Canada in 2007, yet the IRS treated them “as though they were strangers,” according to her legal complaint.

Until now, the Obama administration had taken the view that it had a duty to defend all laws, including discriminatory measures, so long as they could be justified as constitutional.

But Holder said the case of Windsor v. the United States forced the administration to confront, for the first time, the question of whether discrimination against gays and lesbians is presumed to be unconstitutional. In the past, the Supreme Court has struck down several anti-gay laws, including one in Texas that made private sex between gays a crime. But the justices have not ruled on whether laws that treat persons differently because of their sexual orientation are generally unconstitutional, as are measures that discriminate based on a person’s race or gender.

In his letter to House Speaker John Boehner, R-Ohio, Holder said the Justice Department will not defend against Windsor’s suit in New York or a similar suit in Connecticut. He said Congress may wish to appoint its own lawyers to defend the law.

A spokesman for Boehner criticized the White House for an unnecessary foray into a hot-button social issue. “While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that divides the nation,” said Boehner aide Michael Steel.

In a statement from New York, Windsor said, “There are not words to express my feelings today given that President Obama and the Department of Justice have done the right thing by recognizing this fundamental principle that all people and all marriages are entitled to be treated equally under the United States Constitution.”

The decision is Obama’s boldest so far in favor of gay rights. He opposed gay marriage during the 2008 campaign, and his administration defended the “don’t ask, don’t tell” policy in court while arguing it should be repealed by Congress.

Last December, Obama suggested that his position on gay marriage is not set in stone and that he might one day conclude that gays and lesbians should have the right to marry.

“I struggle with this,” the president said at a news conference. “I have friends, I have people who work for me, who are in powerful, strong, long-lasting gay or lesbian unions. And they are extraordinary people, and this is something that means a lot to them and they care deeply about.”

In an interview around the same time with a gay publication, Obama said his attitude on the issue is “evolving.”