In a sharp shift, the President has ordered the Justice Department to stop defending section 3 of the federal Defense of Marriage Act (which is the provision that says that same-sex marriages will not be recognized under federal law). President Obama and Attorney General Holder have apparently concluded that sexual-orientation-based classifications should be subject to heightened scrutiny and that section 3 of the federal DOMA cannot survive such scrutiny. The administration will no longer defend two challenges to DOMA filed in the Second Circuit and will advise courts in other pending challenges of its change in position. The door is still left open, however, for Congress to attempt to defend the law or for others to intervene and defend DOMA. It remains to be seen what the actual, practical effect of this policy shift will be.
Nonetheless, this is a major, salutary (and, given some of the arguments that they had been making in defense of DOMA, quite welcome) shift in policy by the Obama administration. For the full text of the letter from Attorney General Holder, click here.