President Barack Obama’s administration has formally asked the US Supreme Court to scrap the federal law that defines marriage as between a man and woman.
Currently, the 1996 federal Defense of Marriage Act (DOMA) forbids the federal government from recognizing same-sex marriages even in states where those marriages are legal.
Solicitor General Donald Verrilli filed a brief with the court on Friday outlining the government’s argument that DOMA is unconstitutional.
The brief stated that DOMA “violates the fundamental constitutional guarantee of equal protection” before the law as stipulated by the US Constitution.
In addition, the brief read:
“[DOMA] denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples.”
Agence France-Presse reports, the document represents the first time a president has endorsed same-sex marriage rights before the Supreme Court.
The filing comes before two key decisions by the Supreme court next month.
On March 26 and 27, nine Justices of the Supreme Court will hear arguments on two cases related to same-sex marriage and decide on the constitutionality of DOMA.
In the first Windsor v. United States, the case concerns the Internal Revenue Service’s taxing of the estate of a surviving same-sex spouse as if she were a stranger to the deceased.
In the second case Hollingsworth v. Perry, the Justices will consider the wider question of whether gay people enjoy a constitutional right to marry. In this case, a district court in San Francisco ruled that Proposition 8, the California voter initiative that banned same-sex marriage, violates the Fourteenth Amendment guarantee of equal protection of the laws.
The White House position — which Obama revealed in his second inaugural speech when he said, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal as well” — has elicited opposition from Republicans in the House of Representatives.
Republicans say they have a legal right to defend the law in the Supreme Court in the absence of a defense from the executive branch, according to AFP.
For context, last month 10 US senators who voted for the Defense of Marriage Act, filed a brief urging the Supreme Court to uphold DOMA and to refuse to recognize same-sex marriages from other states.
“The time to speak was in 1996, when Congress gave careful consideration to the need for DOMA,” the senators argued.
As well as referring to the gay rights struggle during his inauguration speech last month in which he paralleled it to the Seneca Falls convention in 1848, the 1960’s civil rights movement, and the Stonewall riots of June 1969, Obama has consistently voiced his support for sexual equality.
The New Yorker also notes Obama’s urging to Illinois lawmakers in December 2012 to legalize same sex marriage, and May 2012 interview with ABC’s Robin Roberts during which he said, “I think same-sex couples should be able to get married.”
Going further back to his first term, in 2011 Obama abolished the Pentagon’s “Don’t Ask, Don’t Tell” policy which de facto encouraged military recruits to hide their homosexuality, or risk being expulsion.
However, despite recent moves by the military to extend benefits to same-sex partners, services like medical coverage would not be offered to gay troops’ spouses because of DOMA.
“One of the legal limitations to providing all benefits at this time is the Defense of Marriage Act, which is still the law of the land,” Defense Secretary Leon Panetta said last week.
While Obama’s administration has now weighed in on DOMA, the government has until Thursday, February 28 to decide whether to state a formal position on California’s Proposition 8, Independent.ie reports.