Wednesday, February 23, 2011

Pres. Obama Directs Justice Department to Stop Defending DOMA

NY Times: U.S., in Shift, Sees Marriage Act as Violation of Gay Rights, by Charlie Savage & Sheryl Gay Stolberg:

WASHINGTON — President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.

Attorney General Eric H. Holder Jr. sent a letter to Congress on Wednesday saying that the Justice Department will now take the position in court that the act should be struck down as a violation of same-sex couples’ rights to equal protection under the law. . . .

See also: San Jose Mercury News: Feinstein will introduce bill to repeal Defense of Marriage Act, by Josh Richman:

On the heels of President Barack Obama's announcement that the federal government would not longer defend the Defense of Marriage Act, U.S. Sen. Dianne Feinstein, D-Calif., issued a statement Wednesday saying that as a Senate Judiciary Committee member, she intends to introduce a bill that would repeal the act on and for all. . . .

For competing viewpoints on the propriety of the administration's refusal to defend DOMA see:

Point of Law: Brief thoughts on the administration's DOMA decision, by James R. Copland:

Ted's absolutely right that it's very unusual for an administration to refuse to defend a duly signed federal statute, but it's hardly unprecedented. The closest relatively recent analogue of which I'm aware -- in which the constitutional rule being invoked in refusing to enforce the law is unsettled by the Supreme Court and politically charged -- is the George H.W. Bush administration's decision not to defend federal affirmative-action contracting in Metro Broadcasting. The acting solicitor general for that case was, interestingly, one John Roberts. See this interesting analysis from Marty Lederman. . . .

Volokh Conspiracy: The Executive Power Grab in the Decision Not to Defend DOMA, by Orin Kerr:

I can understand the intense political pressure on the Obama Administration not to defend DOMA. Presumably Obama and pretty much every significant lawyer in the Obama Administration opposes DOMA, whether or not they can take that position on the record. For what it’s worth, I oppose it, too. At the same time, I worry that the decision may have serious long-term effects on the role of the executive branch and executive power. In this post, I want to explain my concerns, and then I’ll open it up for reader comments on whether my concerns are justified. . . .

Congress, President/Executive Branch, Sexuality | Permalink

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