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Holder says marriage act blocks gay rights

WASHINGTON — In a historic shift on gay rights, the Obama administration announced that it believes the Constitution forbids unequal treatment of gays and lesbians in almost all cases, and specifically when it comes to federal benefits for legally married same-sex couples.

Attorney General Eric Holder said in a letter to Congress on Wednesday that the Justice Department would no longer oppose legal challenges to the Defense of Marriage Act. The act, which was passed by Congress in 1996, bars the federal government from recognizing same-sex marriages or extending them the same benefits as heterosexual couples.

Holder said President Barack Obama had decided that discrimination against gays can no longer be accepted as reasonable. Laws that allow such discrimination "warrant heightened scrutiny" by officials and judges, he said, similar to the scrutiny that courts give to laws "targeting minority groups with a history of discrimination."

This new stance by the administration was hailed as a "monumental turning point in the quest for equality" by Jon W. Davidson, legal director for Lambda Legal, a gay-rights group in Los Angeles.

On Capitol Hill, Republicans were sharply critical. Sen. Orrin Hatch, R-Utah, called the decision "deeply disturbing. President Obama's personal policies are trumping his presidential duty."

It comes just two months after Congress and Obama agreed to repeal the military's ban on openly gay service members.

The immediate practical effect of the announcement may be limited. Holder said the administration would continue to enforce the law until a final ruling is made, most likely by the Supreme Court.

Longer term, even if the administration's view prevails it would not force states across the nation to grant equal marriage rights to gays and lesbians. Thirty states have constitutional amendments banning gay marriage. Same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia. Hawaii Gov. Neil Abercrombie signed same-sex civil unions into law Wednesday, granting gay and lesbian couples the same state rights as married partners, beginning Jan. 1.

Obama's position, if accepted by the courts, would prevent federal agencies, including the Internal Revenue Service, from discriminating against gays and lesbians who were legally married. Its legal rationale could also be used to challenge state bans on gay marriage.

A Republican-led Congress passed the Defense of Marriage Act to prevent one state's adoption of gay marriage from spreading nationwide. Usually, states are required to honor legal agreements made in another state, including marriage, under the so-called "full faith and credit" clause in the Constitution. In enacting the law, Congress said neither the states nor the federal government were obliged to recognize a marriage other than "a legal union between one man and one woman."

But in recent years, the law has been challenged as a denial of equal rights by gays and lesbians who were legally married in their state. In New York, Edie Windsor sued after she received a $350,000 tax bill from the IRS after the death of her spouse, Thea Spyer. The two had lived together for 44 years in New York City and were married in Canada in 2007, yet the IRS treated them "as though they were strangers," according to her legal complaint.

"It's almost overwhelming," Windsor, 81, said of the decision. "I don't know what it means in terms of what follows. But the very fact that the president and the Department of Justice are making such a statement is mind-blowing to anybody gay or anybody who is related to anybody gay. I think it removes a great deal of the stigma. It's just great."

Until now, the Obama administration had taken the view that it had a duty to defend all laws, including discriminatory measures, so long as they could be justified as constitutional.

But Holder said the case of Windsor vs. the United States forced the administration to confront, for the first time, the question of whether discrimination against gays and lesbians is presumed to be unconstitutional.

In his letter to House Speaker John Boehner, R-Ohio, Holder said the Justice Department will not defend against Windsor's suit in New York or a similar suit in Connecticut. He said Congress may wish to appoint its own lawyers to defend the law.

A spokesman for Boehner criticized the White House for an unnecessary foray into a hot-button social issue. "While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that divides the nation," said Boehner aide Michael Steel.

.Q&A

The answers

What is the Defense of Marriage Act?

The act, known as DOMA, was passed by Congress and signed into law by President Bill Clinton in 1996 amid concerns that the federal government would be forced to honor legal same-sex marriages in some states. Under Section 2 of the act, states that have not legalized same-sex marriage are not required to recognize gay and lesbian marriages in states that have. Section 3 of the act defines marriage as solely between a man and woman.

Both the Bush administration and the Obama administration have defended the act in court. It has been common practice for the Justice Department to defend laws passed by Congress even if the administration disagrees with them.

What does the Obama administration's action Wednesday mean?

Attorney General Eric Holder announced that after a legal analysis, the Justice Department determined that Section 3 of the act, the provision that defines marriage, is unconstitutional because it treats people differently on the basis of their sexual orientation without a significant reason for doing so. The decision came as the department was to defend the law in two cases in the federal appeals court in New York.

Does Justice's decision legalize gay marriage in any state where it currently isn't legal?

No. States are still free to craft any legislative approach they wish to marriage.

Times wires

Holder says marriage act blocks gay rights 02/24/11 [Last modified: Thursday, February 24, 2011 12:14am]

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