Obama declares key section of gay marriage ban 'unconstitutional'

Update (video, below): White House spokesman says Obama still 'grappling' with 'distinct' feelings on gay marriage

In a stunning reversal of policy announced Wednesday, President Barack Obama decided that a key section of the Defense of Marriage Act, a Clinton-era law that restricts the benefits of marriage to a man and a woman only, is unconstitutional, and ordered the Department of Justice to stop defending it.

The nation's top law enforcement agency said in a media advisory that in reviewing two lawsuits, Pedersen v. OPM and Windsor v. United States, the president concluded that the act did not meet constitutional standards against discrimination.

From now on, they added, in cases where Section 3 of the Defense of Marriage Act is challenged, the Department of Justice will no longer offer a defense.

"In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply," the department's media advisory said.

What this means is that the administration will no longer uphold Section 3 of the act as it applies to couples that are already legally married in states that have allowed same-sex couples.

It does not mean the ban on gay marriage has been lifted.

"Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law," Attorney General Eric Holder's statement read. "But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court."

Speaking to reporters in the White House briefing room, Obama spokesman Jay Carney explained that the president was forced to act on this issue now due to a legal deadline, adding that he is still "struggling" with "distinct" feelings on gay marriage.

"While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the time to stir up a controversial issue that sharply divides the nation," Republican House Speaker John Boehner said, reacting to the announcement.

The National Gay and Lesbian Task Force, however, welcomed the news.

"The decision by the Obama administration not to defend the discriminatory, so-called 'Defense of Marriage Act' is a tremendous step toward recognizing our common humanity and ending an egregious injustice against thousands of loving, committed couples who simply want the protections, rights and responsibilities afforded other married couples," a statement read. "We thank the Obama administration for having the integrity to recognize that this law should not be defended in court. Discrimination has no place in our society, and DOMA has only served to belittle our country's deeply held values of freedom and fairness. It's time to end DOMA once and for all."

This video is from C-SPAN, broadcast Feb. 23, 2011.

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The complete statement follows.

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WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.