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The Defense of Marriage Act

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As states tackle the issue of gay marriage through legislation, the Obama Administration has weighed in with its own decision.

In February, the administration announced that it no longer would enforce Section 3 of the Defense of Marriage Act. Section 3 of the 1996 law states that, “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife." The law, known as DOMA, defines what marriage is according to the federal government—a legal union between a man and woman.

The law was passed at a time when Republicans controlled both the House and Senate. Conservatives pushed and President Clinton signed the law. However, recent polls indicate that many people now oppose the law.

The Administration Decision

In 2010, a federal Circuit Court judge in Massachusetts ruled that the law was unconstitutional in two cases where federal benefits were denied to gay couples.

Jump to 2011. On Feb. 23, Attorney General Eric Holder announced that President Obama believes that Section 3 of the Defense of Marriage Act is unconstitutional because it violates the portion of the Fifth Amendment of the Constitution that guarantees equal protection of rights. The administration, Holder wrote to House Speaker John Boehner (R-Ohio), would continue to enforce DOMA. However, Holder said the Justice Department would not defend it in recently filed lawsuits.

In part, Holder’s letter states that the Defense of Marriage Act is difficult to defend because the original debate in Congress “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

It is very rare for administrations to inform Congress that they no longer will defend laws in court.

Congressional Response

The Obama administration’s decision upset Republicans in the House. Boehner convened a meeting of the Bipartisan Legal Advisory Group, consisting of five members of the House leadership—three Republicans and two Democrats. The group has the power to tell the non-partisan House General Counsel to take legal action. The group voted 3-2 to instruct the counsel’s office to defend DOMA in court on behalf of the House of Representatives. The Republicans voted for taking action and the Democrats voted against it. This means that while the Obama Administration’s Justice Department will not defend the law in suits filed challenging it, the House of Representatives will.

Democrats responded in several ways. First, House Democrats attacked Republican colleagues, questioning the financial cost of defending the law. Secondly, they began a legislative effort in Congress to repeal the law. That legislation is pending in both the House and Senate.

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