In the first two years of the Obama administration, the Justice Department defended the constitutionality of §3 as had the Bush administration. However, last February, Attorney General Eric Holder Jr. announced that President Barack Obama had instructed him to no longer defend the law. The president, he said, had 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. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional."
Holder added that §3 would continue in effect and would be enforced by the executive branch until repealed by Congress or struck down by the Supreme Court.
After the announcement, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) stepped in to the defense vacuum. BLAG's defense of §3, however, is not bipartisan. House Democratic leaders in the group refused to participate. House Republican leaders are now the exclusive defenders of DOMA in all pending Supreme Court petitions through their counsel, former Bush Solicitor General Paul Clement of Washington's Bancroft.
Nine states, including New York, now recognize, same-sex marriage. By contrast, 37 states have passed constitutional amendments or statutes upholding traditional marriage. However, national polls have shown that a majority of Americans now back same-sex marriage.
@|Marcia Coyle is the chief Washington correspondent for ALM, the parent of the Law Journal. She can be contacted at email@example.com.