No more defense

WASHINGTON-The Obama administration will no longer defend in court the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman and bars federal benefits to same-sex couples.

President Obama now deems the act, which Congress passed in 1996 under President Clinton, unconstitutional, according to a letter U.S. Attorney General Eric Holder sent to congressional leadership on Wednesday.

Two cases challenging DOMA are pending before the 2nd U.S. Circuit Court of Appeals, so the administration "had to act," said White House spokesman Jay Carney. "It was under a court-imposed deadline to make this decision."

Obama has long opposed DOMA but his administration defended it as established law. During his campaign to become a U.S. senator, he called the law "abhorrent," and as president he has said it is "discriminatory" and "interferes with states' rights." But the president has previously said, with regards to DOMA, "We have a duty to uphold existing law." On Jan. 18, when a reporter asked whether the administration would quit defending DOMA in court, then-White House spokesman Robert Gibbs responded, "We can't declare the law unconstitutional."

But that's exactly what Holder and Obama did on Wednesday. In Holder's letter, he explained that current DOMA cases would require a higher standard of scrutiny for the law, forcing the president and the attorney general to declare a section of it unconstitutional. He cited an essay by President Clinton's Solicitor General, Seth Waxman, saying that historically the Department of Justice (DOJ) had declined to defend statutes "in cases in which it is manifest that the president has concluded that the statute is unconstitutional."

On DOMA specifically, Holder said he and the president believe Section 3 of the law, which defines marriage as between a man and a woman, violates the equal protection clause under the Fifth Amendment of the Constitution. The administration will not defend the law until Congress repeals that section, Holder said, but it will continue to enforce the law. With a Republican-led House, a repeal is unlikely.

"When Congress enacts laws on behalf of the American people, the American people have the right to expect them to be defended when they're challenged," said Senior Legal Counsel Austin Nimocks of the Alliance Defense Fund. "How the attorney general's constitutional duty to protect and defend the laws of the United States becomes optional is a great mystery."

When the DOJ defended the law in court somewhat early in President Obama's term, June 2009, its brief arguing for traditional marriage angered gay activists. It read, "Individuals are born into, or form, a broad spectrum of human relationships, founded in kinship or affection, whether of spouses, siblings, parent and child, cousins, companions, partners, or otherwise. Yet of all these relationships, Congress has long extended certain federal benefits and protections on the basis of just one-that between a husband and wife (and their minor children) . . . Its cautious decision . . . is entirely rational."

Since that brief, the administration's defense of DOMA has been weak, according to both sides on the issue. Richard Epstein, a top lawyer who supports a repeal of DOMA, said the government has offered "faint-hearted advocacy" bordering on "collusive litigation."

So the administration's decision to excuse itself from DOMA cases could have a silver lining: the House or the Senate can choose to call lawyers themselves to defend the law. "No one can say what would happen in that regard, but at this juncture . . . anything would be improvement," Nimocks said. Join the discussion of this article here.