On February 23, 2011, U. S. Attorney General Eric Holder issued a press release indicating that the federal government will no longer defend the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA). Section 3 of DOMA provides that for all purposes under federal law, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.
Despite the symbolic value of the attorney general’s press release, the release by itself does not change existing federal law. Therefore, until DOMA is officially held to be unconstitutional by the U.S. Supreme Court or repealed by Congress, same-sex couples are not entitled to any of the benefits that opposite-sex married couples are entitled to under federal law, and states are still authorized to refuse to recognize same-sex marriages validly performed in other states where such unions have been legalized.
It is important to note that the press release does not speak to the constitutionality of Section 2 of DOMA, which provides that states may refuse to recognize same-sex marriages performed in other states where such unions have been legalized. If Section 3 of DOMA is ultimately found to be unconstitutional, Section 2 of DOMA may still remain intact. Under this scenario, same-sex couples married and living in the relatively few states that recognize same-sex marriage would be entitled to federal law benefits currently provided to opposite-sex couples, while at the same time same-sex couples living in the majority of states that do not recognize same-sex marriage would continue to be denied these same federal rights and privileges.
Employers should continue to closely monitor the federal cases involving the constitutionality of DOMA. The federal government’s decision not to defend Section 3 of DOMA will undoubtedly have a significant impact on the results. For more information, see Federal Government Refuses to Defend Defense of Marriage Act - Now What? and Court Rulings that Federal Ban on Same-Sex Marriage is Unconstitutional Raises Significant Implications for Employee Benefit Plans.