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US will no longer defend Defense of Marriage Act in court

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Section 3 of DOMA restricts the use of the word “marriage” to a legal union between one man and one woman as husband and wife.

The administration’s action was prompted by approaching deadlines in two pending federal cases – in Connecticut and New York. In both lawsuits, same-sex married couples are charging that DOMA’s ban on federal benefits to those in gay marriages violates the Constitution’s requirement of equal treatment. Justice Department lawyers assigned to defend the statute had until March 11 to file their opening briefs in the cases.

“In the two years since this administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court,” Holder said. Each of those cases, he said, had been filed in a jurisdiction where the binding legal precedent established a relatively easy standard to uphold the challenged law.

Department lawyers were able to make “reasonable arguments” within that jurisdiction’s law, he said.

In contrast, Holder said, the two new cases were filed in a federal circuit that has no binding legal standard from a prior DOMA case. “In these cases, the administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard … should apply,” he said.

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors … classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder said.

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