The Obama administration's decision last year to press for repeal of the military's "don't ask, don't tell" policy was distinctly at odds with its continued legal defense of the federal Defense of Marriage Act (DOMA). On Wednesday, Obama reconciled that contradiction.
The administration announced Wednesday that the Justice Department no longer would legally defend DOMA, which forbids the federal government from recognizing same-sex marriages and stipulates that states need not recognize same-sex marriages from other states.
While DOMA will remain law until it is either repealed by Congress or found unconstitutional by the Supreme Court, the Justice Department under President Barack Obama won't defend it against lawsuits seeking repeal.
Attorney General Eric Holder sent a letter to Congress saying the administration believes that DOMA violates the equal-protection clause of the Fifth Amendment. Holder also wrote that "the legislative record underlying DOMA's passage contains ... numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against."
This does not mean that DOMA no longer will be enforced. The administration can't unilaterally negate federal law.
But, in essence, it is inviting legal challenges to the law. If Congress wants to defend DOMA in court, it will have to appoint its own lawyers to do so.
The decision by a president to halt the administration's defense of a law is not unprecedented. For example, the Clinton administration both enforced and argued against the discriminatory HIV policy in the military in 1996. That law ultimately was repealed.
By refusing to defend DOMA legally, the Obama administration no longer must try to make a case with which it fundamentally disagrees. The move also suggests that the political winds - and, perhaps, Obama's thinking - have changed since the law was enacted in 1996.
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