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Obama Administration won't support Defense of Marriage Act

Gays have scored victories for same-sex marriage and adoption, but the future of "don't ask, don't tell" is uncertain. And recent teen suicides raise questions about societal acceptance.

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By Joel Rosenblatt
(c) 2011 Bloomberg News
Wednesday, February 23, 2011; 2:50 PM

Feb. 23 (Bloomberg) -- The Obama administration said it won't defend the Defense of Marriage Act, the 1996 law that defines marriage as being between a man and a woman, in two lawsuits in federal courts in New York and Connecticut.

U.S. Attorney General Eric Holder stated his position in a letter today to John A. Boehner, the Ohio Republican who is speaker of the U.S. House of Representatives. The letter explains that the Justice Department has decided a key provision in the law violates constitutional equal protection rights.

In October, the administration said it was appealing rulings in federal court in Massachusetts that the act was an unconstitutional violation of states' rights.

"While the department has previously defended DOMA against legal challenges involving legally married same-sex couples," recent lawsuits challenging the constitutionality of the section of the law that defines marriage "have caused the president and the department to conduct a new examination," Holder said in today's letter.

President Barack Obama has long opposed the law, said Jay Carney, the White House press secretary. While the president views the law as unfair, he's still "grappling" with his views on same-sex marriage, Carney said. Obama reviewed Holder's recommendation on the issue "and concurred," Carney said.

Holder said in his letter that defending the Defense of Marriage Act in the cases at issue would require the Justice Department to support defining marriage as only a legal union between a man and a woman in cases where a regional federal appeals court has set no such precedent.

"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," the section of the Defense of Marriage Act defining marriage as only a union between a man and a woman "is unconstitutional," he wrote.

In a separate statement, Holder said the law will remain in effect until Congress repeals it or a court issues a final ruling striking it down.

In Washington, initial reaction to the announcement on the New York and Connecticut cases was along partisan lines.

New York Representative Jerrold Nadler, a Democrat, praised Obama and Holder for "their leadership, integrity and courage."

Their decision "marks the first time that the federal government has recognized that the law designed to harm" gay Americans "cannot be justified," Nadler, who has sponsored legislation to repeal the law, said in a statement.

Michael Steel, a spokesman for Boehner, said in an e-mail he questions why Obama "thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation" when "most Americans want Washington to focus on creating jobs and cutting spending."

House Democratic Leader Nancy Pelosi called the decision "a victory for civil rights, fairness and equality." In a statement, the California lawmaker praised Obama for "this bold step forward to ensure the federal government is no longer in the business of defending an indefensible statute."

Edith Schlain Windsor, the plaintiff in the New York case, married another woman, the late Clara Spyer, in Canada in 2007, according to her complaint. While New York legally recognized their marriage, and afforded them the same protections as other married couples, the two women weren't considered married under federal law, she said.

The case claims that under federal tax law, the transfer of money and property doesn't trigger any estate law, and that because of the Defense of Marriage Act, Windsor was forced to pay more than $350,000 in taxes that she wouldn't have had to pay if her marriage to Spyer had been recognized under federal law.

Joanne Pedersen, who filed the Connecticut complaint, is a retired civil employee of the Department of the Navy's Office of Naval Intelligence who says she and her same-sex partner married in Connecticut in December 2008. Pedersen said she was denied permission to enroll her spouse, Ann Meitzen, in the Federal Employees Health Benefits Program because Meitzen didn't qualify as a family member under DOMA.

Pedersen said that while Meitzen, who has suffered from recurrent bouts of pneumonia, wanted to work only part-time, she can't afford to give up her full-time job's health insurance benefits, according to the complaint.

The cases are Windsor v. U.S., 1:10-cv-8435, U.S. District Court, Southern District of New York, and Pedersen v. OPM, 3:10- cv-1750, U.S. District Court, District of Connecticut.

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