[JURIST] The US Department of Justice (DOJ) [official website] announced Wednesday that it will no longer defend the constitutionality [press release] of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive], which defines marriage for federal purposes as a legal union between one man and one woman, in court cases challenging the provision. Attorney General Eric Holder [official profile] acknowledged that the announcement marks a change in policy for the DOJ and the Obama administration, but noted that the change was necessary due to cases pending in the US Court of Appeals for the Second Circuit [official website]. Holder explained that when the DOJ previously defended DOMA it had done so in jurisdictions with binding precedent stating that a permissive standard of review was applicable to laws dealing with sexual orientation. Holder indicated that both he and President Barack Obama [official website] believe that laws concerning sexual orientation should be subject to a higher standard of review and that DOMA is unconstitutional when considered under that standard, stating:

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. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

In addition to declining to defend DOMA, Holder indicated that DOJ attorneys will advise courts with pending DOMA litigation that they believe that DOMA should be subjected to a heightened level of scrutiny. Holder also emphasized that Section 3 of DOMA does remain in effect and that the Executive Branch will continue enforcing the law, even though they believe it is unconstitutional.

Last month, the DOJ filed a brief [JURIST report] with the US Court of Appeals for the First Circuit [official website] defending the constitutionality of DOMA. The appeal followed a July ruling [JURIST report] by the US District Court for the District of Massachusetts, which found that Section 3 of DOMA violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. In its brief, the DOJ argued that DOMA is in line with those sections of the constitution, stating that DOMA was “rationally related” to maintaining “consistency in the distribution of federal marriage-based benefits.” Massachusetts, the first state to recognize gay marriage, initiated the suit [JURIST report] against the federal government in July 2009. In November, the Gay and Lesbian Advocates and Defenders (GLAD) and the American Civil Liberties Union (ACLU) [advocacy websites] filed separate lawsuits [JURIST report] challenging DOMA. Plaintiffs in the GLAD case allege that they have been denied certain marriage benefits and protections that are available to similarly situation heterosexual couples in Connecticut, New Hampshire and Vermont. The plaintiff in the ACLU case is challenging provisions of DOMA that deprive of her certain tax deductions she would receive as a widow.