Obama right not to defend ban on gay marriage

President Barack Obama has told his administration to stop defending the federal Defense of Marriage Act because it discriminates against gays and lesbians. Better late than never.

The stunning turnaround by Obama and Attorney General Eric Holder, whose Justice Department defended the 1996 law for the past two years, is clearly a strategic political decision as much as a clever legal one. Regardless, the extremely unusual choice by the executive branch not to defend a law passed by Congress was the morally correct one.

The reversal means the Justice Department, in two cases currently before the federal appellate circuit court for New York and Connecticut, is taking the position that gays should be afforded the same constitutional protection from official discrimination that has been awarded to others based on their race, religion or gender.

The law under challenge, known as DOMA, bars the federal government from recognizing same-sex marriages, essentially denying same-sex couples the rights and privileges given to heterosexual ones. When it was signed by President Bill Clinton 14 years ago, DOMA was mostly symbolic. Who can marry and how marriage is governed was historically a state issue and it remains that way. At the time DOMA was passed, no state permitted same-sex marriages or recognized ones performed in other jurisdictions. Now at least eight states recognize some variation and there is a strong push by advocates in New York for legislators to vote this spring for legalization.

So DOMA, which governs more than 1,000 federal laws and regulations, has consequences in the everyday lives of gays. Among them is 81-year-old Edith Windsor of Manhattan, whose lawsuit is dramatically affected by the Justice Department's decision. Windsor married Thea Spyer in Toronto in 2007. She wants to get back $360,000 in estate taxes she paid after Spyer, her partner for 44 years, died in 2009. If the spouse she cared for through a decades-long struggle with multiple sclerosis were a man, Windsor would have been able to shield some of her inheritance from the IRS.

The other case at issue involves Gerald V. Passaro, who married Thomas M. Buckholz in Connecticut in 2008. They had been a couple for 13 years when Buckholz died in 2009. Although Buckholz's employer allowed domestic-partner benefits, Passaro was denied pension benefits as the surviving spouse because federal laws, like DOMA, govern pension plans.

Personal views about same-sex marriage are complex and strong. Even President Obama says he doesn't support it, and polls show the public is evenly divided. Many Americans, however, support equal treatment of gays, fairness in the workplace, and favored repeal of the military's "don't ask, don't tell" ban.

Overturning DOMA would give gays and lesbians equal protection under our laws. The Justice Department has now moved in that direction, the courts should follow.