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Obama rejects Defense of Marriage Act

In victory for gay-rights advocates, US won’t defend law in court

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By Donovan Slack and Michael Levenson
Globe Staff / February 24, 2011

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WASHINGTON — The Obama administration delivered an unexpected victory to gay-rights activists yesterday, declaring that a law prohibiting federal recognition of same-sex marriages is unconstitutional and discriminatory and that Department of Justice lawyers will no longer defend it in court.

The administration will still enforce the law, which prohibits the federal government from granting benefits to same-sex couples, such as breaks for estate taxes and Social Security payments to spouses. But Attorney General Eric H. Holder Jr. said it will stop opposing legal challenges, increasing the odds that court decisions striking down the law — including one in Massachusetts — will stand.

Obama’s decision represents a reversal for a president who, for the last two years, tried to walk a fine political line by defending the law in court while saying that he opposed it and wanted it repealed. Approved in 1996, the law, called the Defense of Marriage Act, defines marriage as between a man and a woman.

Yesterday’s victory for gay-rights advocates follows the congressional repeal in December of the ban on gays serving openly in the military. But the president is stopping short of personally endorsing gay marriage. The White House press secretary, Jay Carney, said Obama is still “grappling’’ with his feelings on the issue.

The responsibility for defending the marriage act now falls to Congress, which has the authority to appoint a special counsel to pursue the issue. Republicans, including Senator Scott Brown, while critical of the president’s decision, did not say yesterday whether they would take such a step.

“We can’t have presidents deciding what laws are constitutional and what laws are not,’’ Brown said in a statement. “That is a function of the judicial branch, not the executive.’’

But Massachusetts Representative Barney Frank, who is gay, hailed the decision as a “major breakthrough’’ that reflects society’s greater acceptance of gays and lesbians

“This is both a sign of and a result of the fact that gay prejudice is being defeated by gay reality,’’ he said.

The president’s decision immediately bolsters cases brought by supporters of same-sex marriage across the country, including one filed by Attorney General Martha Coakley that led Joseph L. Tauro, a federal judge in Boston, to declare last July that the law was unconstitutional.

The administration will drop an appeal of that ruling, Coakley said. She said that if Congress decides not to defend the law, Tauro’s decision against the Defense of Marriage Act “would be the final decision.’’

“As a practical matter, that would be the end of it here in Massachusetts,’’ Coakley said. “That would be the precedent and the law of the land, that the Defense of Marriage Act is unconstitutional.’’

Massachusetts recognized gay marriage in 2004, making it the first state in the nation to do so. Governor Deval Patrick applauded the president’s shift.

“In Massachusetts, we believe that every person ought to be able to marry whomever they love, and we believe the rest of the country is moving forward in that direction, too,’’ he said in a statement.

Gay marriage is now legal in five states and the District of Columbia. Even in those jurisdictions, however, the Defense of Marriage Act prevents gay couples from filing joint federal tax returns or receiving survivor compensation from Social Security.

In addition to the Massachusetts litigation, the decision affects two newer court cases — one in Connecticut and another in New York — that would have required that the administration take a fresh stand in the next few weeks.

The Connecticut case was filed by Boston-based Gay & Lesbian Advocates & Defenders, or GLAD, and includes plaintiffs in Vermont and New Hampshire.

“It is extremely significant that the Department of Justice recognizes what we’ve been saying for years in our litigation,’’ said Mary Bonauto, civil rights project director for GLAD. “Laws that distinguish between people based on sexual orientation are suspicious and likely to reflect prejudice against gay people rather than good public policy.’’

Under federal law, the attorney general has discretion to refrain from “defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute,’’ provided the attorney general has determined it is unconstitutional. The law then requires the attorney general to notify Congress, which Holder said yesterday that he had done.

Opponents of same-sex marriage blasted the president and urged House Speaker John Boehner to mount a defense of the law.

“We’re shocked that the president and Attorney General Holder are refusing to carry out their constitutional duties to defend the laws established by Congress,’’ said Kris Mineau, president of the Massachusetts Family Institute. “They are trying to strike down’’ the marriage act “in its totality.’’

Boehner’s office yesterday did not say if Republicans plan to defend the law. But his spokesman, Michael Steel, accused Obama of poor timing.

“While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,’’ Steel said.

But the nature of Obama’s move places the burden on opponents of same-sex marriage in Congress to take action if they want to keep fighting in courts. And that could be a risky distraction for the GOP which has pledged deficit-fighting and budget issues as its top priorities.

“For the Republican leadership, that is the last thing they want to deal with right now,’’ said Julian Zelizer, a professor of history and public affairs at Princeton University. “I think a lot of Republicans feel that President Obama is quite vulnerable, and they see a real opportunity to do well in 2012, so the last thing you want is to inject an issue that creates dissention and creates divisions. They want to be focused on the deficit, a lot of Republicans — not on this.’’

For Obama, political analysts said, the nod to his liberal base is important, because he has been moving toward the political center following the Republicans’ winning control of the House last November.

“It’s almost, he takes a step to the center,’’ said Jennifer Duffy, senior analyst at the nonpartisan Cook Political Report, “then he yells over his shoulder, ‘I’m still here; we’re going to move when we have to move but on issues you care about I’ll make a difference when I can.’ ’’

Theo Emery and Mark Arsenault of the Globe staff contributed to this report. Donovan Slack can be reached at dslack@globe.com. Follow her on Twitter @DonovanSlack.