DOMA - The Road ahead
February 24, 2011 by Brian Moulton, Legal Director
As we told you yesterday, the Justice Department announced that they will stop defending the Defense of Marriage Act (DOMA) in court, specifically the portion of that law that denies federal rights and benefits to lawfully married same-sex couples.
This was a monumental change of position by the Obama administration – but what now? It’s hard to say right now what all the consequences will be, but here are two important points to remember: DOMA is still the law. The Attorney General made clear yesterday that the federal government will continue to enforce DOMA until Congress repeals it or a court definitively rules that the law is unconstitutional. The Justice Department will still participate in cases challenging DOMA, but change its position to argue that the law is unconstitutional and should be overturned. So, for the time being, married same-sex couples will still be denied federal rights and benefits while challenges to DOMA continue to wind their way through the courts. HRC will continue to push Congress to repeal DOMA and support the efforts of our friends at the ACLU, Gay and Lesbian Advocates and Defenders, and other organizations to overturn DOMA in court.
Congress may still intervene. Even though the Justice Department will no longer defend DOMA, it is required to notify congressional leaders, so that they may intervene in cases challenging the law. While Republican House Speaker John Boehner (R-OH) and Republican House Judiciary Committee Chairman Lamar Smith (R-TX) both put out statements criticizing the Attorney General’s decision, neither of them indicated if they will try to step in and defend DOMA in court. With a filing deadline in two of the DOMA cases looming next Friday (although it’s quite possible that that may be extended), we should know soon what House Republicans plan to do. It’s also possible that anti-LGBT groups may ask the courts currently considering DOMA challenges – in California, Connecticut, Massachusetts, and New York – to let them intervene and argue in support of DOMA.
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