Defense of Marriage Act Not Defendable In Court
February 24, 2011
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The Defense of Marriage Act (DOMA) will no longer be defended in court by the Obama administration, according to an announcement by Attorney General Eric Holder. The Defense of Marriage Act, a facially discriminatory statute that barred federal recognition of same-sex marriages (thus preventing gay married couples from receiving the same federal benefits as heterosexual married couples), has been defended in court  by the Obama administration pursuant to his duty as President to enforce the nation’s laws. However, the administration has now asserted that the Defense of Marriage Act is unconstitutional and will no longer be enforced.

While gay marriage advocates have faced a number of setbacks in court recently, this move by Obama is a major step forward in undoing some of the discriminatory practices that exist in government. The political implications of the executive branch of government refusing to enforce legislation will also have far-reaching impact as well. While the Obama administration will continue to enforce the Defense of Marriage Act until it is declared unconstitutional in court, their refusal to defend the law’s constitutionality in court makes the overturning of this law likely to happen sooner than later. There are already at least two lawsuits pending to declare DOMA unconstitutional.

In an article called No More Defense of the Defense of Marriage Act – A Major Step Forward for Gay Rights, I posed the question of whether a president can refuse to enforce a law passed by Congress. For example, if Congress passes a law over the President’s veto, what authority does the president still have to defy it? On the other hand, how can the President take an oath to defend the Constitution only to then be forced to defend an unconstitutional law in court?

I have only one complaint about the President’s decision. He should have adopted this position a few days ago when I was in the Outwrite Bookstore and Coffeehouse, so that I could have talked to some of the customers about how this may change their lives. I would have loved to have been around to see their reaction when this news was released.

Congratulations to the members of the gay and lesbian community, who have just taken a major step forward in achieving equal rights under the law. I hope that a court ruling officially declaring the law unconstitutional will be issued soon.

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