Prevalent in yesterday's news was the decision of President Obama and Attorney General Eric Holder to discontinue its defense of the Defense of Marriage Act ("DOMA") in two cases pending in District Courts in the Second Circuit. Both cases involved couples who were legally married in a State where same-sex marriages are permitted, but who were denied certain benefits of their marriages under Federal law.
In a letter to Congress, Attorney General Holder set forth the Department of Justice's ("DOJ") conclusion that a crucial provision of DOMA was unconstitutional and, thus, indefensible. Although that decision was obviously celebrated by supporters of same-sex marriage, its long-term effects remain indeterminable. Neither President Obama nor the Attorney General have the power to repeal DOMA, and unless and until there is a definitive court decision striking it as unconstitutional or Congress itself repeals DOMA, DOMA remains in effect.
Indeed, Attorney General Holder's letter provides that the Executive Branch will continue to enforce DOMA, even though it would decline to defend a crucial provision thereof. In addition, the DOJ expressly left it to Congress to assume the defense of DOMA in the pending legal actions. Many commentators believe that at least some members of Congress will take over defense of DOMA. It is, therefore, unlikely that DOMA will be undefended in these existing lawsuits. And, of course, the final judicial determination on DOMA's constitutionality is mere speculation.
Another open question is whether any state will attempt to defend DOMA or attack any effect of DOMA's repeal on their own laws through legal action. Thirty-nine states currently have either provisions in their own constitutions preventing same-sex marriages or their own versions of DOMA. Some of these states may very well resist any requirement that they recognize same-sex marriages performed in other states, a requirement that DOMA expressly exempts from the full faith and credit clause of the Constitution. Thus, even if DOMA is ultimately repealed or found unconstitutional, individual states might successfully defend their current opposition to same-sex marriages.
In sum, while President Obama's and Attorney General Holder's unusual decision not to defend constitutional challenges to an existing law certainly strengthens the quest for legalization of same-sex marriages, its ultimate effect, particularly in those states with Constitutional prohibitions against them, remains unknown.