Obama ends defense of gay marriage ban

WASHINGTON — President Barack Obama ordered his administration Wednesday to stop defending the constitutionality of a federal law that bans recognition of gay marriage, a policy reversal that could have major implications for the rights and benefits of gay couples and reignite an emotional debate for the 2012 presidential campaign.

Obama keeps “grappling” with his views on whether gays should be allowed to marry but has long opposed the federal law as unnecessary and unfair, spokesman Jay Carney said.

First word of the change came not from the White House but from the Justice Department. Attorney General Eric Holder announced that Obama had decided that the 15-year-old Defense of Marriage Act, DOMA, was indefensible.

The decision was welcomed by gay rights organizations and vilified by those on the other side. Some Democrats in Congress praised the decision, while it drew criticism from some Republicans, all surely a preview of political debate over the latest development in the long-running national conversation about gay rights.

The outcome of that debate could have an enormous effect because federal laws and regulations confer more than a thousand rights or benefits on those who are married, most involving taxpayer money such as Social Security survivors’ benefits, family and medical leave, equal compensation as federal employees and immigration rights.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA,” Holder said in a statement explaining the decision.

The social landscape has changed too. Since the law was passed in 1996, five states and the District of Columbia have approved gay marriage. Others allow civil unions. A poll in August found 52 percent of Americans saying the federal government should give legal recognition to same-sex couples.

Thirty states have constitutional amendments banning gay marriage. Same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C.

White House officials framed Obama’s decision as one brought on by a legal deadline in one of several federal court cases challenging the constitutionality of the law which defines marriage as only between a man and a woman.

But Sen. Jim DeMint, R-S.C., speculated Obama’s decision was motivated more by political considerations: “It’s only in the run-up to re-election that he’s suddenly changed his mind.”

Rep. Shelley Berkley, D-Nev., agrees with the White House position, a spokesman said.

“Congresswoman Berkley absolutely supports the White House’s decision to no longer defend the federal ban on same-sex marriage, a law she strongly opposes,” said Berkley’s communications director, David Cherry.

Berkley co-sponsored legislation in 2009 that would have repealed the law and allowed the federal government to provide marriage benefits to same-sex couples married under state laws. Former Rep. Bob Barr, R-Ga., who wrote the Defense of Marriage Act, endorsed the repeal because it left the marriage issue to be decided by state governments.

President Bill Clinton, who signed the Defense of Marriage Act into law on Sept. 21, 1996, also endorsed the 2009 bill seeking repeal. The original law was widely supported in Congress, clearing the House by a vote of 342-67 and the Senate, 85-14.

Sen. Harry Reid, D-Nev., voted for it. Sen. John Ensign, R-Nev., who was serving in the House at that time, did not cast a vote on final passage but spoke in favor of the bill.

“The need to enact legislation to preserve the fundamental definition of matrimony as a union between one man and one woman is pressing and necessary,” he said during floor debate.

Ensign said that a pending ruling in a Hawaii court could legalize same-sex marriages in that state and require the other 49 states to abide by the decision.

Hawaii Gov. Neil Abercrombie signed same-sex civil unions into law Wednesday, calling it “a triumph for everyone” that gay and lesbian couples will have the same state rights as their opposite sex counterparts. Civil unions in the Rainbow State would start Jan. 1, making Hawaii the seventh state to permit civil unions or similar legal recognitions.

Rep. Dean Heller, R-Nev., disagreed with the White House decision, said his communications director, Stewart Bybee.

“Congressman Heller believes that the traditional understanding of marriage between a man and a woman should be preserved. While he does not agree with the administration, states have historically regulated such matters and Nevada, like many states, has passed its own defense of marriage amendment,” Bybee said.

Obama’s reversal on this law had long been sought by gays, who overwhelmingly voted for his election in 2008.

The Justice Department had defended the act in court until now. But Holder said Obama concluded the law fails to meet a rigorous standard under which courts view with suspicion any laws targeting minority groups, such as gays, who have suffered a history of discrimination, a stricter standard of scrutiny than the department has applied in the past.

Gay rights activists noted that the president’s move came two months after Congress, urged on by the administration, voted to repeal the “don’t ask, don’t tell” policy that prevented gays from serving openly in the military.

“This major turn should be a final nail in the coffin for the different treatment of gay and non-gay people by the federal government,” law professor Suzanne Goldberg of Columbia University’s Center for Gender and Sexuality Law said.

Reaction on the other side was fierce.

“On the one hand, this is a truly shocking extra-constitutional power grab in declaring gay people are a protected class,” said Maggie Gallagher of the conservative National Organization for Marriage. “The good news is this now clears the way for the House to intervene and to get lawyers in the courtroom who actually want to defend the law, and not please their powerful political special interests.”

Stephens Washington Bureau writer Peter Urban contributed to this report.

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