The Obama administration announced today that it will no longer offer legal resistance to the Defense of Marriage Act, signed into law by President Clinton in 1996.
Specifically, the administration will no longer defend the constitutionality of the law, which established at the Federal level that a marriage is between one man and one woman. The decision today marks a reversal of a tradition of defending the law dating back to its signing. However, the Obama administration indicated that from a constitutional perspective the law was indefensible, according to US Attorney General Eric Holder, and the law was recently challenged as unconstitutional. The decision was prompted by suits filed by New York and Connecticut in Federal court, and the administration was facing a filing deadline in those proceedings. Connecticut allows gay marriage, while New York recognizes those marriages performed elsewhere, but does not permit such marriages.
In his letter to Congress, Holder writes:
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
According to USA Today, one of those involved in the suit is Edith Windsor. In 2007 she married a woman in Canada, who subsequently died. Because the US did not recognize the marriage, Windsor was obliged to pay a $350,000 tax on her inheritance that she would not have had to pay if she were married to a man.
The Defense of Marriage Act also places limits on Federal benefits in the US such as social security and health insurance, among others. It is not clear what impact the decision will have on these specific benefits, but it is likely to leave them open to further adjudication, according to Holder's letter.