Obama Administration Says Defense of Marriage Act is Unconstitutional

Obama Administration Says Defense of Marriage Act is Unconstitutional

Media Contact:  Nancy Goldfarb, 212-854-1584    [email protected]

New York, Feb. 23, 2011— The Obama administration said today that it would not defend in court the Defense of Marriage Act (DOMA), the 15-year-old federal law that defines marriage as between a man and a woman. The Justice Department had previously defended the law, but said it had determined in a pair of cases in the federal appeals court in New York that it was no longer constitutional.

The co-directors of the Columbia Law School’s Center for Gender and Sexuality Law offered the following comments about today’s announcement:

Katherine Franke, Professor of Law;  Co-Director, Center for Gender and Sexuality Law:

The Obama administration is to be applauded for recognizing the injustice and discrimination that were solidified into law with the enactment of the Defense of Marriage Act (DOMA).  His decision, along with his Attorney General, to abandon defense of lawsuits challenging DOMA signals a true shift in the recognition of the fundamental rights of lesbians and gay men to organize their lives in ways equal to those of heterosexuals.  I also applaud the President and Attorney General's statement that sexual orientation should be treated as a suspect class under equal protection analysis, thus requiring any state that seeks to discriminate on the basis of sexual orientation to provide not just a plausible, but a compelling reason for doing so.  This represents a sea change in the recognition of lesbian and gay rights in the U.S.

The President and Justice Department could, however, take one further step, and refuse to defend the lawsuits challenging Don't Ask, Don't Tell.  At the same time that the Administration has changed policy on the marriage rights of same-sex couples, it continues to defend the blatantly discriminatory policy of the U.S. military.  This is particularly surprising given that Congress has authorized the repeal of DADT and the President has recognized that maintenance of the policy undermines unit readiness and national security.  I urge him to reverse course in the DADT litigation just as he has in the DOMA cases.

Suzanne Goldberg, Clinical Professor of Law; Co-Director, Center for Gender and Sexuality Law:

This major turn should be a final nail in the coffin for the different treatment of gay and nongay people by the federal government in marriage and the military.   It is a long time coming and is wonderful news for the entire nation as we move a giant step closer to equality for all.

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