The Obama Administration's New Position on Same-Sex Marriages


Under current federal law, individuals recognized as same-sex spouses under state law are not considered married for purposes of federal law. This has ramifications in a number of areas, such as federal income taxation and rights to certain benefits under qualified pension plans.

On February 23, 2011, Attorney General Eric Holder issued a letter to Congress announcing that the Obama administration will no longer defend the constitutionality of section 3 of the Defense of Marriage Act ("DOMA"), which defines the terms "spouse" and "marriage" for purposes of all federal laws and administrative actions.

Under section 3 of DOMA:

- A "spouse" is defined as a person of the opposite sex who is a husband or wife; and

- "Marriage" is defined as a legal union between one man and one woman as husband and wife

The Obama administration's view, as expressed in Attorney General Holder's letter, is that definitions based on sexual orientation merit a heightened level of judicial scrutiny, and under such scrutiny, section 3 of DOMA is unconstitutional as applied to same-sex couples legally married under state law. Therefore, the Department of Justice will not defend section 3 of DOMA in two current lawsuits challenging its constitutionality.

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