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In Policy Shift, President Orders Halt to Legal Defense of Marriage Law

February 23, 2011 at 6:55 PM EDT
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President Obama ordered the Justice Department to stop defending a 1996 federal law defining marriage as only between a man and a woman. Gwen Ifill talks with Charlie Savage of The New York Times about the implications of the president's decision.
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GWEN IFILL: The Obama administration reversed course today when it announced it will no longer defend in court a federal law that defines marriage as between a man and a woman.

Attorney General Eric Holder’s letter to House Speaker John Boehner read: “The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny, and banning recognition for legally married same-sex couples is unconstitutional.”

At the White House today, Press Secretary Jay Carney stopped short of endorsing gay marriage outright.

WHITE HOUSE PRESS SECRETARY JAY CARNEY: The president’s personal view on same-sex marriage, I think you all have heard him discuss as recently as the press conference at the end of last year.

That is distinct from this legal decision. The decision is that we will — the administration will not defend the Defense of Marriage Act in the Second Circuit.

Furthermore, the president directed the attorney general not to defend — because of the decision that it’s not constitutional — defend the Defense of Marriage Act in any other circuit, in any other case.

GWEN IFILL: The law’s supporters condemned the president’s decision. And a spokesman for Speaker Boehner said in a statement that, “The president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

For more on this, we turn to Charlie Savage, domestic correspondent for The New York Times, who has been covering all of this.

Welcome to the NewsHour, Charlie.

Explain something to me. We heard Jay Carney today make the distinction between a legal decision that the president and the attorney general made and a moral decision. What is that distinction?

CHARLIE SAVAGE, The New York Times: Well, most of the debate over gay marriage in this country has been a very — on the moral issue, the very basic issue, should gay people have a right to get married?

But this debate, it moves past that one level to a legal issue about what happens after they have already gotten married. There are now eight states, plus the District of Columbia, that either issue marriage licenses to gay couples or recognize such marriages if performed elsewhere.

And so that has raised a new issue, which is this. If there are two sets of gay — of married couples in a state whose are — whose marriages are lawfully recognized by that state, is it constitutional for the federal government to treat those people unequally, to hand out certain benefits to one set of marriages — married couples and not to another based on their sexual orientations?

GWEN IFILL: So, remind people who don’t watch this, follow this all the time what exactly the Defense of Marriage Act is, what it did, what it was intended to do.

CHARLIE SAVAGE: The Defense of Marriage Act was passed by the Republican Congress and signed by President Clinton in 1996, a presidential election year.

And it was designed to stop the growth of gay marriage, which then had not even gotten going, but you could see it on the horizon. And so the key issue, the provision that’s at issue in these lawsuits that triggered this decision today, says that the federal government will not recognize a marriage unless it involves a man or a woman.

So even if the state of New York, say, says this lesbian couple is lawfully married, this gay couple is lawfully married, the federal government will ignore that — that distinction. And so when it comes to certain benefits, like, for example, the surviving spouse in a marriage who inherits property from their dead husband or wife does not have to pay estate taxes on that.

But the federal government is charging estate taxes to surviving couples who are in gay marriages, even if those marriages are recognized under their state’s laws.

GWEN IFILL: So, what the White House is saying today and the Justice Department is saying today is that they are going to ignore a federal law. They’re not going to do what they can to pursue or defend a federal law. How unusual is that?

CHARLIE SAVAGE: Well, I wouldn’t say they’re going to ignore it. In fact, they’re making clear that they’re going to keep enforcing this law, unless and until there’s a definitive ruling from the courts that says this is unconstitutional, and you, the federal government, must not enforce it.

What they’re saying is, when people challenge these laws, when they file a lawsuit saying this violates our constitutional rights, we have a right to equal protection under the law, you can’t do this, federal government, the Justice Department is no longer going to come into court and say, no, no, Judge, you should get rid of this lawsuit; there’s a perfectly valid reason why this law is constitutional.

They’re going to leave the law undefended. And that means that maybe Congress, more likely just the House of Representatives, will appoint its own lawyer to come in as a friend of the court to defend the law, or maybe a judge in a lawsuit will appoint a lawyer to at least make the arguments that the law is constitutional, but the full weight of the Justice Department will no longer be backing these laws in court.

GWEN IFILL: And how unusual is this? Does that happen a lot?

CHARLIE SAVAGE: It does not happen a lot. It happens. It happens from time to time, maybe once every — once a decade, twice a decade.

The president — usually, it happens in the context where the law infringes on presidential power in some way, and then the president says: I’m not going to defend a law that I don’t like. It infringes on my own constitutional responsibilities.

But, more rarely, it happens when — in a situation like this, where the president has decided there’s no plausible argument that I buy that this law is constitutional; therefore, I’m just going to leave in court, and let other people defend it if they want to.

GWEN IFILL: Now, this — the president’s stands on gay marriage has, in his words, evolved over time. He has said he was not in favor of actually — actual gay marriage. This seems to take it a step more in that direction.

Does it feel like ground — does it seem — are you hearing — are people telling you that groundwork is being laid for that?

CHARLIE SAVAGE: Well, I mean, certainly, during the presidential campaign, he said he didn’t favor gay marriage, but he did favor civil unions for gay people.

But then he said after the repeal of the don’t ask, don’t tell law late last year, which barred gay men and women from serving openly in the military, that his own views on same-sex marriage were — quote — “evolving,” today, that — his press secretary said he’s still in that state of flux.

I think’s there’s a sort of suspicion on both the left and the right that President Obama probably actually is a liberal who favors gay marriage, and he’s just not saying so for political reasons. This does seem to be inching closer towards what may be an inevitable evolution for him.

GWEN IFILL: So, what does this do, this decision today, do to cases which might be in the pipeline?

CHARLIE SAVAGE: Well, there are two cases pending in New York which drove this decision. For legal — on legal technicality reasons, it was going to be much harder for the Justice Department to defend against these lawsuits than against previous ones.

And there is one, a very important one, in the First Circuit in Massachusetts. A trial judge has already ruled the law unconstitutional. And the Justice Department just last month filed a brief at the appeals court, saying, no, no, you should overturn that decision; this law is constitutional.

My understanding now is that, in these cases and in others, the Justice Department is going to change its position, or not defend the law. So, that would involve, in this case in Boston, for example, probably filing briefs saying, those earlier briefs are no longer operative, we no longer believe these legal arguments, and we’re getting out of here.

GWEN IFILL: Congress passed this law by significant margins in both houses. Is this something they can challenge?

CHARLIE SAVAGE: Well, the Congress can — it’s not that they can challenge the Justice Department’s decision not to show up in court, or the president’s decision not to let the Justice Department show up in court.

But they can appoint someone to represent their interests as a friend of the court to make the arguments that they wish the Justice Department was making on their behalf.

And so that is one option. I would predict that the House of Representatives, at least, which of course is under Republican control, will do that. But we will have to see how it develops.

GWEN IFILL: Charlie Savage of The New York Times, thanks so much.

CHARLIE SAVAGE: Thank you.