DOMA's Changing Landscape

With the administration opposing the 1996 law's federal marriage definition in court, marriage equality forces found themselves a new ally and a new foe in 2011

By Chris Geidner
Published on December 22, 2011, 7:59am | Comments

On Feb. 23, Attorney General Eric Holder made the historic announcement that the Department of Justice would no longer be defending Section 3 of the Defense of Marriage Act – the federal definition of marriage – in ongoing court challenges to the constitutionality of the provision.

The immediate impact was seen quickly, as the government's decision was, initially, made in the case of Edith Windsor – a woman who, when her wife Thea died, had to pay a $350,000 estate tax bill because their marriage was not recognized by the federal government. But soon the decision was also seen to have a role in immigration and bankruptcy cases, with questions raised about the effect of the decision on same-sex married, binational couples and on married same-sex couples seeking to file joint bankruptcy petitions.

As the year came to a close, a court hearing Dec. 16 in Karen Golinksi's case seeking equal health insurance benefits for her wife presented a stark picture of the changed landscape. At the hearing, Assistant Attorney General Tony West, the head of the DOJ Civil Division, represented the administration. The Bipartisan Legal Advisory Group, on which the House Republican leadership has majority representation, has filed briefs in several cases defending DOMA and the group's outside counsel defended the law Dec. 16.

In June 2009, West was criticized for having signed his name to an administration brief that defended DOMA by arguing, in part, ''DOMA does not discriminate against homosexuals in the provision of federal benefits.'' On Dec. 16, however, West was on Golinski's side, leaving the defense of DOMA to the House Republican leadership.

No challenges have yet been resolved, though, and the Obama administration, according to Holder's Feb. 23 letter, will continue to enforce DOMA ''unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality.''

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