WASHINGTON — In a change of course, President Barack Obama has decided that a law denying federal recognition of same-sex marriages is unconstitutional and the U.S. will no longer defend it in court, the White House announced Wednesday.
Obama’s decision will not have an immediate impact. Attorney General EricHolder said the president will continue to enforce the Defense of Marriage Act, referred to by its acronym DOMA, until it’s either clearly struck down by the courts or repealed by Congress, which he’s urged.
That means that an estimated 1,140 laws and policies regarding marriage will remain in place and enforced, and that same-sex couples who are married in the states where they live will still be denied the federal benefits of marriage in matters such as Social Security survivor benefits and taxes.
The law, passed by a Republican Congress and signed into law by former President Bill Clinton in 1996, defined marriage as between one man and one woman.
“Much of the legal landscape has changed in the 15years since Congress passed DOMA,” Holder said in a statement.
“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 Congress has repealed the military’s ‘don’t ask, don’t tell’ policy.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 [the Defense of Marriage Act] itself to be unconstitutional.”
Five states have legalized same-sex marriage since 2004: Massachusetts, Connecticut, Iowa, New Hampshire and Vermont, as well as the District of Columbia. Maryland may soon join them. Thirty states have constitutional amendments banning same-sex marriage.
Obama’s view also has evolved.
As a presidential candidate in 2008, he endorsed civil unions to guarantee rights for same-sex couples, but said, “I believe that marriage is the union between a man and a woman.”
In December, he told The Advocate, a homosexual magazine, that “like a lot of people, I’m wrestling with this. My attitudes are evolving.”
On Wednesday, White House press secretary Jay Carney said Obama is still debating the question personally.
“He’s grappling with the issue,” Carney said.
While the law’s supporters criticized Obama’s decision, he didn’t initiate it. Lower court challenges to the law required his response. Indeed, Holder and the Justice Department announced the decision, and the White House spoke about it only when asked, and then only briefly.
But Sen. Jim DeMint, RS.C., speculated that Obama’s decision was motivated more by political considerations: “It’s only in the run-up to reelection that he’s suddenly changed his mind.”
Law professor Suzanne Goldberg, director of Columbia University’s Center for Gender and Sexuality Law, said, “This major turn should be a final nail in the coffin for the different treatment of gay and non gay people by the federal government.”
Regardless of his personal opinion of marriage and the politics of the issue, Carney said, Obama agrees with Holder that the law’s definition of marriage, excluding same-sex couples, is unconstitutional and no longer can be defended in court.
Holder said the Justice Department had a long-standing practice of defending the constitutionality of laws as long as “reasonable arguments” could be made for them. But he said the department also has refused to defend laws when the president has concluded they’re unconstitutional.
In a letter to House Speaker John Boehner, R-Ohio, Holder said Congress could defend the law itself. But he said the law was intended to discriminate against homosexuals.
He said the Congressional Record includes “numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships, precisely the kind of stereotype-based thinking and animus” that the Constitution’s Equal Protection Clause was written to stop.
Holder also said that “a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable.”
House Judiciary Committee Chairman Lamar Smith, R-Texas, criticized the decision as an abdication of duty.
“The Justice Department has a responsibility to defend the laws passed by Congress regardless of the personal political views of the president or the attorney general,” he said.
Boehner’s spokesman, Michael Steel, issued a statement faulting Obama for stirring up the issue “while Americans want Washington to focus on creating jobs and cutting spending.”
Jerry Savoy, a Connecticut man in a same-sex marriage who is among those challenging the law, welcomed Obama’s action, saying he and his spouse were “no different than any other family living on our street.” Savoy, a lawyer for a federal agency, said that because of the law he cannot include his spouse on his employer-provided health insurance.
Sen. Dianne Feinstein, DCalif., announced plans to introduce legislation to repeal the Defense of Marriage Act.
“My own belief is that when two people love each other and enter the contract of marriage, the federal government should honor that,” she said.
Meanwhile, lawyers for two same-sex couples again asked a federal appeals court Wednesday to allow homosexual marriage to resume in California while the court considers the constitutionality of the state’s ban on samesex unions.
The couples’ attorneys filed a motion asking the 9th U.S. Circuit Court of Appeals to lift the stay it imposed in September on a trial-court ruling that struck down the voter-approved ban known as Proposition 8.
The request was prompted by an “intolerable” delay created last week when the California Supreme Court said it needed the rest of the year to consider a pivotal legal question in the case: whether Proposition 8 sponsors have authority to challenge the lower court’s decision, lawyer Theodore Olson said.
“The right to marry is not an abstract principle any more than might be said about the right to vote, the right to speak and the right to practice one’s religion,” Olson said. “Every day our fellow citizens are denied their most basic civil rights that their friends and neighbors freely enjoy ... that discrimination inflicts countless injuries.”
The plaintiffs also have asked the California Supreme Court to hasten its examination of the legal-standing issue. The court has said it would not hear oral arguments before September, but the couples are asking the hearing to be moved up to May.
The 9th Circuit has said it can’t move forward with its deliberations without state court guidance on whether ballot proposition sponsors can defend their measures in court if the governor and attorney general refuse to do so.
Olson said the argument for allowing same-sex couples to get married while the case is on appeal received an unexpected boost Wednesday when the Obama administration said it would no longer defend the Defense of Marriage Act.
While not directly relevant to Proposition 8, the administration’s position could help persuade the 9th Circuit that the ban’s sponsors would be unlikely to prevail in their appeal, he said.
The 9th Circuit does not have a deadline for responding to Wednesday’s request.
Information for this article was contributed by Steven Thomma, Marisa Taylor and Margaret Talev of McClatchy Newspapers; and by Pete Yost, Nancy Benac, David Crary, Stephen Singer and Lisa Leff of The Associated Press.
Front Section, Pages 1 on 02/24/2011