Defense of Marriage Act Unconstitutional: Obama

By Lori Preuitt and Sajid Farooq
|  Wednesday, Feb 23, 2011  |  Updated 4:12 PM PDT
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How will the president's stance on DOMA impact the <a title=Prop. 8 trial? Pete Williams explains." />

How will the president's stance on DOMA impact the Prop. 8 trial? Pete Williams explains.

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The Obama administration said Wednesday that it will no longer defend the constitutionality of a federal law banning the recognition of  same-sex marriage, specifically a portion of the Defense of Marriage Act that defines marriage as being between a man and a woman.

The move is a major reversal for the White House on DOMA and will surely be cheered by the gay community in the Bay Area.

California's Prop 8 court battle continues, with the state Supreme Court getting involved. That court will determine in September whether backers of the measure that bans same-sex marriage have the right to appeal a federal judge's decision that the measure is unconstitutional.

The determination of who has the required "standing" is pivotal to the legal debate.

In California, former Gov. Arnold Schwarzenegger said he would go along with the California Supreme Court's decision on gay marriage, while at the same time publicly speaking out against DOMA.

Attorney General Eric Holder made the announcement in a letter to House Speaker John Boehner. He said that President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman.

"In light of the foregoing, I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law," Holder wrote.

The administration's decision hinges on classifying the gay community as one that has suffered a "history of discrimination" and thus any classification based on sexual orientation must be subject to a "heightened standard of scrutiny" as required by the Constitution.

Obama's press secretary said Wednesday the order is consistent with the president's stance all along that DOMA is "unnecessary and unfair." But the president says he still not sure if he supports gay marriage.

Also Wednesday in California, lawyers for two same-sex couples asked a federal appeals court to allow gay marriage to resume in California while the court considers the constitutionality of Prop. 8. The couples' attorneys filed a motion asking the 9th U.S. Circuit Court of Appeals Panel to lift the stay it imposed in September, which blocked a lower court ruling striking down the ban.

This is not the first such request. All have been denied or ignored by the court.
 

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