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Obama administration will no longer defend DOMA

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WASHINGTON (RNN) - Calling the law unconstitutional, the Obama administration announced it will no longer defend the federal ban on same-sex marriage, or Defense of Marriage Act (DOMA), in court.

Attorney General Eric H. Holder on Wednesday fulfilled his constitutional duty to report to Congress that the Justice Department would not defend the law. In a letter addressed to Speaker of the House John Boehner, R-OH, Holder said the Obama administration believes that section three of DOMA violates the equal protection guarantees in the Fifth Amendment.

"After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that section three of the Defense of Marriage Act … as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment," Holder said, marking a sweeping policy change for an administration that had previously defended the law in court, despite criticism from gay rights groups.

Section three of the Defense of Marriage Act (DOMA) defines the terms "marriage" as a "legal union between one man and one woman as husband and wife," and "spouse" as "a person of the opposite sex who is a husband or a wife."

The move was championed by gay rights groups, like the Human Rights Campaign (HRC), which called the decision "monumental."

"This is a monumental decision for the thousands of same-sex couples and their families who want nothing more than the same rights and dignity afforded to other married couples," said Joe Solmonese, president of the HRC, the nation's largest lesbian, gay, bisexual and transgender (LGBT) advocacy group, in a news release. "As the president has stated previously, DOMA unfairly discriminates against Americans, and we applaud him for fulfilling his oath to defend critical constitutional principles."

According to the HRC, DOMA, which was passed by Congress in 1996, denies legally married same-sex couples the more than 1,000 benefits tied to marriage under federal law. These benefits include "Social Security survivors' benefits, family and medical leave, equal compensation as federal employees and immigration rights, among many others," the group said.

While gay rights groups championed the so-called landmark decision, Republicans strongly voiced their opposition, calling the policy change an attempt by the White House to distract from the current economic problems plaguing the nation.

"While Republicans are focused on cutting spending so that we can grow the economy and create jobs, the White House is more interested in rekindling hot button political issues to distract from the current debate over how to fund out government in the most fiscally responsible way," said Laena Fallon, spokeswoman for House Majority Leader Eric Cantor, R-VA.

Fallon called the issue a disturbing attempt to skirt the nation's legal system.

"The Department of Justice should fulfill its duty to defend the laws in this country, not be irresponsibly brought into a political chess game by the president," she said.

In his letter to Boehner, Holder said that the Justice Department wants to provide "Congress a full and fair opportunity to participate in the litigation at those cases," a move that would come at taxpayers' expense in the midst of heated budget cuts on Capitol Hill.

The HRC predicted anti-LGBT leaders in Congress would defend the law. Solmonese called upon Congressional leaders to not "waste" taxpayer money to defend a law the Justice Department regards as unconstitutional.

"The federal government has no business picking and choosing which legal marriages they want to recognize," Solmonese said. "Instead, Congress should take this opportunity to wipe the stain of marriage discrimination from our laws."

Two recent challenges to DOMA, Windsor v. U.S. and Pedersen v. OPM, arose in jurisdictions that had no precedent on whether classifications based on sexual-orientation are subject to a rational basis review.

These lawsuits thus required the Justice Department to take an affirmative position on the level of scrutiny that should be applied when considering the law in those locations.

"The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section III of DOMA is unconstitutional," Holder said.

According to Lambda Legal, the argument from the White House boils down to this: Discriminating against people on the basis of sexual orientation should be presumed to be unconstitutional, and unconstitutional laws should not be defended. 

Holder noted, however, that the executive branch will continue to uphold section three in accordance with its obligation to ensure that laws are faithfully executed until Congress repeals DOMA or it is ruled unconstitutional in court.

Thus, according to Lambda Legal Director Jon Davidson, the battle against DOMA is not yet over.

"While the so-called DOMA is very clearly crumbling it is not yet gone," he said in a news release. "The executive branch will continue to enforce it until it is repealed by Congress or struck down by the courts. We will continue our efforts to dismantle this law, along with all other laws that discriminate based on sexual orientation."

Sen. Richard Shelby, R-AL, also expressed strong disagreement with the Justice Department's decision, which he implied could infringe on state rights. Shelby offered his own resolve: an amendment to the Constitution to define marriage.

"I will support any legislation that I feel will strengthen the American family and support positive values for all of our citizens," the senator said. "To that end, I support an amendment to the Constitution that would strictly define marriage as a union between a man and a woman throughout the country."

Lambda Legal, however, saw today's announcement from the Justice Department as a "turning point" in the country's history.

"Today's action by the President and the Department of Justice hastens the day when those laws will no longer stain our nation," Davidson said.

According to Holder, motions to dismiss the Windsor and Pedersen cases are due March 11.

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