The Obama administration filed the first in a series of legal briefs on Friday calling for the Supreme Court to strike down the Defense of Marriage Act (DOMA), saying the 1996 law that defines marriage as between one man and one woman is unconstitutional. Previously having only committed to not defending DOMA, the administration has now actively decided to seek its repeal.
“Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people,” said Solicitor General Donald Verrilli in the Justice Department’s brief. “The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 [which prohibits the marriage of same-sex couples] is unconstitutional.”
The Supreme Court has agreed to hear an appeal in the case of United States vs. Windsor, in which Edith Windsor’s estate tax bill after the death of her wife far exceeded that of heterosexual surviving spouses because the IRS, in compliance with DOMA, did not recognize her 2007 Canadian marriage to Thea Spyer—the woman she’d been with for 40 years—even though they were legally married in the eyes of their home state, New York. Oral arguments begin on March 27.
Another case that will be heard in March deals with Proposition 8, a 2008 ballot referendum in California banning same-sex marriage after the state Supreme Court had conferred the right to marry. Sources say the Justice Department is prepared to file an amicus brief claiming same-sex couples have a Constitutional to right marry, and that Prop 8 violates the fundamental guarantee of equal protection. President Obama is said to be undecided about intervening in a state-level situation.
“The Solicitor General is still looking at this. I have to make sure that I’m not interjecting myself too much into this process, particularly when we’re not a party to the case,” said the president. “I can tell you, though, obviously, my personal view, which is that I think that same-sex couples should have the same rights and be treated like everybody else. And that’s something I feel very strongly about and my administration is acting on wherever we can.”
The Respect for Marriage Act (H.R. 1116), intended “to repeal the Defense of Marriage Act and ensure respect for State regulation of marriage,” is expected to be reintroduced in the current Congress.
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