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A statement was released today, February 23, 2011, by the Attorney General on the litigation related to the Defense of Marriage Act (DOMA).  The announcement stated that Obama has determined that section 3 of the Defense of Marriage Act (DOMA) that defines a married couple for federal law purposes as a man and a woman is unconstitutional.  He has instructed the Department of Justice to not defend the statute in the Second Circuit.  The statement itself can be found athttp://www.justice.gov/opa/pr/2011/February/11-ag-222.html.

The following conclusions were made by the President:

  • 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.
  • Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

What does this mean?  It means that the DOJ will not defend the constitutionality of Section 3 of DOMA.  The Attorney General has noted that they work closely with the courts to ensure that Congress has a full and fair opportunity to participate in the pending litigation.  DOMA is still in place and will still be enforced by the Executive Branch until either Congress repeals it or there is a final judicial finding that strikes it down.

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