The United States bishops’ Office of General Counsel said the Obama
administration’s decision to no longer support the Defense of Marriage
Act in legal challenges ahead “represents an abdication” of its
“constitutional obligation to ensure that laws of the United States are
faithfully executed.”
“Marriage has been understood for millennia
and across cultures as the union of one man and one woman,” the office
said in a statement issued February 23 after President Barack Obama
instructed the Justice Department to stop defending the federal law
passed by Congress and signed into law in 1996 by President Bill
Clinton.
The Defense of Marriage Act says the federal government
defines marriage as a union between one man and one woman and that no
state must recognize a same-sex marriage from another state.
“The
principal basis for today’s decision is that the president considers the
law a form of impermissible sexual orientation discrimination,” the
Office of General Counsel said.
In a February 23 statement,
Attorney General Eric Holder said that although the administration has
defended the 1996 law in some federal courts, it will not continue to do
so in cases pending in the 2nd U.S. Circuit Court of Appeals.
Unlike in
the previous cases, said Holder, the 2nd Circuit “has no established or
binding standard for how laws concerning sexual orientation should be
treated.”
In response to the announcement, the National
Organization for Marriage, which opposes same-sex marriage, called on
Congress to “get lawyers in the courtroom who actually want to defend
the law, and not please their powerful political special interests.”
“We
have only begun to fight,” said Brian Brown, president of the
organization.
He also said that with Holder’s announcement, Obama
“unilaterally” declared homosexuals “a protected class” under the
Constitution and would effectively make a federal court decision on the
law “unreviewable by higher courts.”
While Obama favors repealing
the law, Holder said the president has supported defending it as
constitutional if a state or local law meets the legal standard of
having “a rational basis” for singling out people for different
treatment based on sexual orientation.
But in the pending cases,
Holder said, 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, under
which laws targeting minority groups with a history of discrimination
are viewed with suspicion by the courts, should apply.”
Obama “has
concluded that given a number of factors, including a documented
history of discrimination, classifications based on sexual orientation
should be subject to a more heightened standard of scrutiny,” Holder’s
statement said.
He added that Obama has concluded that the law “as
applied to legally married same-sex couples, fails to meet that
standard and is therefore unconstitutional. Given that conclusion, the
president has instructed the department not to defend the statute in
such cases. I fully concur with the president’s determination.”
The
United States bishops’ Office of General Counsel said refusal to
support the law was “a grave affront to the millions of Americans who
both reject unjust discrimination and affirm the unique and inestimable
value of marriage as between one man and one woman.”
It also
stressed that support for traditional marriage “is not bigotry,” but is a
“reasonable, common judgment affirming the foundational institution of
civil society.”
The office said that “any suggestion by the government
that such a judgment represents discrimination is a serious threat to
the religious liberty of marriage supporters nationwide.”
Holder
said the legal landscape has changed since the law was passed, including
with Supreme Court rulings overturning laws criminalizing homosexual
conduct and the repeal by Congress of the military’s “don’t ask, don’t
tell” policy.
Unless Congress repeals the Defense of Marriage Act,
or a final court ruling strikes it down, it will continue to remain in
effect and the administration will continue to enforce it, Holder noted.
“But
while both the wisdom and the legality of (the pertinent section of the
law) will continue to be the subject of both extensive litigation and
public debate, this administration will no longer assert its
constitutionality in court,” Holder said.
Bill Donohue, president
of the Catholic League for Religious and Civil Rights, said the decision
by the Obama administration reflects the president’s views 15 years ago
when he was running for the Illinois state Senate. At the time, he said
he favored legalizing same-sex marriage and would fight efforts to
prohibit such marriages.
Donohue said Obama endorsed civil unions
in 2004, but that during his presidential campaign he spoke of marriage
as a union between a man and a woman.
“Now Obama is officially on
record as president opposing the defense of marriage,” said Donohue’s
Feb. 23 statement.
He said the president was not only going against the
1996 law but also was “in opposition to the over 30 state initiatives
affirming marriage as a union between a man and a woman.”