In reversal, White House orders Justice to stand down on gay marriage

President Obama has instructed the Department of Justice to stop defending the Defense of Marriage Act, saying that parts of the law are unconstitutional.

Obama, who said last year that his opposition to gay marriage was "evolving," has told Attorney General Eric Holder to stand down in DoJ's defense of the Defense of Marriage Act (DOMA) because it is unconstitutional and there is not a "reasonable" argument for the federal government to defend.

White House press secretary Jay Carney stressed that Obama's personal views on gay marriage are "distinct from this legal decision."

While Obama continues to believe that marriage is between a man and a woman, Carney said that Obama "has long opposed [DOMA] as unnecessary and unfair."

Carney added that Obama is "grappling" with the issue of gay marriage. 

DOMA asserts that states that do not recognize same-sex marriage do not have to honor the gay marriages and same-sex unions formed in other states. The law also says that the federal government recognizes marriage as being between a man and a woman.

In a statement, Holder said that after a review, "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."

Holder said that Obama "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," Holder said. "I fully concur with the president’s determination."

Carney defended the timing of the announcing, noting that the Second Circuit had set a deadline the administration had to meet.

"The administration had no choice," Carney said. 

ADVERTISEMENT
DoJ will not defend the constitutionality of DOMA in two cases before the Second Circuit, but will "remain parties to the cases and continue to represent the interests of the United States throughout the litigation."

The decision is the latest high-profile move by the Obama administration to expand gay and lesbian rights since taking office in 2009. 

LGBT activists had expressed frustration toward the White House for the better part of Obama's first two years in office, charging the president with not moving swiftly enough to expand gay rights.

The president signed into law in 2009 a measure allowing benefits to be shared by federal workers in same-sex couples. 

But the biggest victory for LGBT activists came in the lame-duck Congress, when lawmakers approved a repeal of the military's "Don't ask, don't tell" ban on gay or lesbian members of the military serving openly. 

Obama acknowledged in December that, despite his public opposition to same-sex marriage, his thoughts on the matter are in the process of shifting. 

"My feelings are constantly evolving," Obama said. "My baseline is a strong civil union that affords them legal protections ... I recognize from their perspective, it's not enough." 

Despite the administration's new stance on the marriage statute, Holder said that Obama told him as long as DOMA is law, the executive branch will enforce it.

"But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this administration will no longer assert its constitutionality in court," Holder said.

The administration also left open the door to members of Congress stepping forward to defending DOMA in court.

"I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option," Holder wrote. "The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation."

Michael O'Brien contributed to this post, which was updated at 1:03 p.m. and 1:55 p.m.