Shift on Gay-Marriage Law Will Affect Array of Policies

Author: Geoffrey A. Fowler and Evan Perez
Publication: Wall Street Journal
Publication Date: February 25th, 2011

Read the story at Wall Street Journal.
The Obama administration's decision to no longer back the Defense of Marriage Act won't immediately enable married gay couples to receive federal benefits, but is already shaping battles in the courts and in Congress that could affect a range of government policies.

Attorney General Eric Holder on Wednesday said the Justice Department would stop defending the law, known as DOMA, which defines marriage as the union of a man and woman. But Mr. Holder, in a letter to House Speaker John Boehner, said federal agencies would continue to abide by the act.
"The President has instructed Executive agencies to continue to comply with [the law], consistent with the executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality," Mr. Holder wrote.

Still, the move "will have a very significant impact because it is easier for the courts to say 'we think this law is unconstitutional' if another branch is already saying that," said Jon Davidson, the legal director of Lambda Legal, one of the groups that has challenged the law in court.

He pointed to an order issued Thursday by U.S. District Judge Jeffrey White in the Northern District of California in a case about granting health benefits to the gay spouse of a federal worker in California, a state that briefly allowed gay marriage in 2008.

In the order, Judge White asked lawyers defending the U.S. Office of Personnel Management, "How does the Executive [Branch] reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend?"

A Department of Justice spokeswoman declined to comment on the case.

The next move is in the hands of Congress, which could defend the law itself in ongoing legal challenges in states including Connecticut, New York and Massachusetts. On Thursday, Mr. Boehner's office had no comment about whether the Ohio Republican would get involved in the legal fights. On Wednesday, his spokesman questioned whether this was the "appropriate time to stir up a controversial issue."

Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, said his group had already been meeting with members of Congress to ask them to intervene in the DOMA legal challenges. "The Obama administration is not going to live up to its duty, and now it is in Congress' lap to defend DOMA," he said.

Beyond legal challenges, U.S. lawmakers could take up DOMA directly. Some Democrats have already indicated they planned to challenge the law. Sen. Dianne Feinstein of California said in a statement she intended to introduce legislation that "will once and for all repeal" the 1996 law.

Meanwhile, actions involving gay couples continued in individual states, which hold the power to grant marriages and have their own laws on the issue. Maryland's Senate on Thursday passed a bill that would legalize same-sex marriage. On Wednesday, Hawaii Gov. Neil Abercrombie, a Democrat, signed a bill legalizing civil unions for same-sex couples beginning next year.

Linda McClain, a family-law professor at Boston University who has followed the gay marriage issue, said Mr. Holder's legal language, citing discrimination against gays and lesbians, signals a major change in federal policy even if the practical effects await court rulings.

"This type of development is moving toward a national policy against sexual orientation discrimination," she said, noting that until recent years the courts had generally accepted a certain amount of discrimination against gays that wasn't allowed against other groups.

While permitting same-sex couples to marry is an issue for the states, gay-rights advocates contend that DOMA prevents couples from receiving certain federal services and rights, including Social Security, tax benefits and the ability to sponsor a foreign spouse for a visa or citizenship. DOMA is "the most glaring example of state-sponsored discrimination against its people," said Evan Wolfson, executive director of Freedom to Marry.

The law affects people like Andrew Sorbo, a retired school teacher in Connecticut, who was left with 20% of the couple's combined income after his husband, Colin Atterbury, died two years ago. Mr. Atterbury had been a federal employee at the Veteran's Hospital in West Haven, Conn., but Mr. Sorbo is unable to receive his pension because of DOMA.

"It was a tremendous financial loss," he said. "It is unfair to know that if I were a woman or if Colin were a woman, either one of us would be able to inherit from the other."

Write to Geoffrey A. Fowler at and Evan Perez at