Obama's "tightrope": What led up to the decision to stop defending the anti-gay-marriage DOMA act

As the New York Times reported in January, the White House had been walking a tightrope on the issue — taking the untenable position that, while the administration didn't agree with the law, it was duty-bound to enforce it.

But finally, when faced with the case of an 81-year-old New York widow suing for the return of $360,000 in estate taxes she'd been forced to pay because the federal government did not recognize her marriage, there was no way to ignore the inequities. As the Times reported yesterday, her suit was one of two filed in New York state, where the court had no precedent for codifying discrimination against gays and lesbians:

While Mr. Obama has called for Congress to repeal the marriage law, in court his administration has supported the constitutional right of Congress to enact such a measure. But his legal team was forced to take a second look at the sustainability of that position because of two recent lawsuits challenging the statute. The Justice Department must file responses to both suits by March 11.

For technical reasons, it would have been far more difficult — both legally and politically — for the administration to keep arguing that the marriage law is constitutional in these new lawsuits. To assert that gay people do not qualify for extra legal protection against official discrimination, legal specialists say, the Justice Department would most likely have had to conclude that they have not been historically stigmatized and can change their orientation.

Of course, the Republicans are all up in arms, charging Obama with trying to distract from the budget fight by bringing up divisive cultural issues. No doubt the decision does shift the media's attention to a new controversy, but Obama and the Justice Department had another reason for coming out with this announcement now: that March 11 deadline.

And, political considerations aside, it seems that Obama and Attorney General Holder had finally decided to stop walking that tightrope.

Read about the Time story about the path that led to this decision here.

It had to happen sometime: the acknowledgment that the Defense of Marriage Act — the 1996 law barring federal recognition of same-sex marriage — was indefensible. Like the now-repealed Don't Ask/Don't Tell policy for the military, DOMA was a Bill Clinton sop to conservatives, an act whose inherent unfairness would inevitably face legal challenge.

But the announcement yesterday that Obama had instructed the Department of Justice to stop defending the law in court still came as a shock.

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