In Policy Change, Justice Department Will Stop Defending Anti-Gay Marriage Law
By David Stout | February 23, 2022 1:26 pm

Attorney General Eric Holder said on Wednesday that the Justice Department, in a significant policy change, will no longer defend the Defense of Marriage Act, the 1996 statute that limits the definition of “marriage” for federal purposes as a union between a man and a woman.

President Barack Obama and the DOJ have longed walked a tightrope regarding the law, which Obama as a candidate said he found abhorrent but which the Obama administration’s DOJ said it felt obligated to defend against court challenges (See earlier coverage by Main Justice).

“The Department has a longstanding practiced of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense,” Holder explained in his statement about the change in policy.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA,” Holder said. “The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s ‘Don’t Ask, Don’t Tell’ policy. Several lower courts have ruled DOMA itself unconstitutional.”

Holder noted that the law has recently been challenged in the United States Court of Appeals for the 2nd Circuit, which covers New York, Connecticut and Vermont. He said two lawsuits in the circuit were important in the policy shift.

“In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply,” Holder said.

“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”

Holder also sent a letter to congressional leaders explaining the shift.

The Attorney General said the DOJ was not becoming just a sideline observer but would “continue to represent the interests of the United States throughout the litigation.”  He said, too, that the DOJ “will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.”


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