Obama Administration May be Forced to Take a Stand on Same-Sex Marriage

Under the Defense of Marriage Act, the federal government cannot recognize same-sex marriages. This has raised questions regarding the constitutionality of denying same-sex couples certain federal benefits, such as an exemption to estate taxes for surviving spouses.

Over the last two years, President Obama has urged lawmakers to repeal the Defense of Marriage Act while sending Justice Department lawyers to court to uphold the law at the same time, citing his duty to defend acts of Congress. Two new federal lawsuits involving same-sex marriage could reach the appeals court in New York, which, unlike previous challenges to bans on same-sex marriage, is one of the only circuits without modern precedent on evaluating laws that discriminate against gay people. This means that the administration may be required take a clear stand on the issue, starting with determining the standard of judicial review for federal laws discriminating against gay people.

The administration has not yet decided which route to take, but the Justice Department must respond by March 11.  Michael Dorf, a law professor at Cornell University, stated that the Obama administration now has to state “what they think the law should be, and not merely how to apply the law as it exists. There is much less room to hide for that decision.”

Charlie Savage, Suits on Same-Sex Marriage May Force Administration to Take a Stand, N.Y. Times, Jan. 28, 2011.