The Defense of Marriage Act, which denies recognition of same-sex marriages for purposes of administering federal law, has recently been in the headlines. Two new cases, one in Massachusetts and the other in New York, have been filed challenging the constitutionality of Section 3 of the Act. In those jurisdictions, no precedent exists as to whether the issue of sexual-orientation classifications is subject to a rational basis of review or must satisfy some form of heightened scrutiny. In response to those cases, on February 23, 2011, the Attorney General announced that the Justice Department will no longer defend the constitutionality of the Act. The President and the Attorney General concluded that the classification must satisfy heightened scrutiny and therefore as applied to same-sex couples legally married under state law, Section 3 of the Act was unconstitutional. Recently, the law firm that was hired by the Republicans in the House to defend the constitutionality of the Act withdrew. (Editor Note: Tax Insider readers should note that while the firm withdrew, the actual lawyer quit the firm, but did not withdraw and Congress will continue to defend the Act's constitutionality.) What does this mean with respect to the administration of the tax laws and who does this affect?
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