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No defense of Defense of Marriage Act

February 24th, 2011  |  Connie Eyer

The Department of Justice has decided not to defend the Defense of Marriage Act (DOMA) in two lawsuits, according to a letter sent by the US Attorney General Eric Holder to Speaker of the House John Boehner. In a statement accompanying the letter, the DOJ stated that it has defended DOMA on several occasions, believing that it could reasonably defend the Act under the rational basis theory. Moreover, in that letter, Holder stated that the Department will now take the position in court that the Act should be struck down because it violates same-sex couples rights to equal protection under the law.

However, Holder noted that Section 3 of DOMA, which singles out individuals on the basis of their sexual orientation, has been challenged in the Second Circuit, which does not have an established or binding standard, such as rational basis, for how laws concerning sexual orientation should be treated. Thus, Holder stated that the DOJ, after giving “careful consideration” to the matter, has decided not to defend DOMA in the Second Circuit case, because President Barack Obama has decided that a more heightened level of scrutiny should apply to classifications based upon sexual orientation and that Section 3 fails to meet that standard.

Holder’s letter to Boehner, and other Congressional leaders, states that the legal landscape has changed in the 15 years since DOMA was enacted. Holder referenced the Supreme Court decision ruling that laws criminalizing homosexual conduct are unconstitutional and the Congressional repeal of the military’s “Don’t Ask, Don’t Tell” policy.

What the Department’s decision means for employers is unclear. Many employers already offer health and life insurance benefits to domestic partners and gay marriage is legal in several states. However, should DOMA be struck down and should gay marriage become legal across the country, employers would be hard-pressed not to offer such benefits.