Looking at the Defense of Marriage Act

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Jen and Dawn Barbouroske pose with their daughters McKinley and Bre on Sept. 15, 2009, following a news conference with married same-sex couples on legislation to repeal the Defense of Marriage Act outside the Capitol Hill in Washington, DC. The Obama Administration announced on Feb. 23, 2011, that it will no longer defend the federal ban on same-sex marriage.

What does it mean when the country’s top lawyer refuses to defend the constitutionality of a Congressional law? Here's a closer look at the Attorney General’s decision to not defend the Defense of Marriage Act.

Congress passed the Defense of Marriage Act 15 years ago. Georgetown law professor Susan Bloch says the law’s language is simple.

"In one provision," she explains, "it says that under all federal laws that use the term 'married couples,' it will refer to a man and a wife. Regardless of what a state law says."

That affects how couples file their taxes, whether surviving partners can receive Social Security payments and other federal matters.

Another provision in the law forbids states from recognizing marriages of same-sex couples that tie the knot in another state.

Several courts around the country are hearing cases that challenge the constitutionality of the Defense of Marriage Act. Law professor Susan Bloch says when there’s a challenge to an act of Congress, the Justice Department usually acts as lawyer for the US - and defends the federal statute.

"The only exception to that is if the United States believes that there’s really no good way to defend its constitutionality," she says. "If that happens – and that is what’s happening in this case – the Department of Justice basically says to Congress, 'I’m sorry. We can’t defend your law. So if you, Congress, want to defend your law, you’ll have to get your own lawyer'.”

Congress returns to Washington, DC next week and had expected to spend its time debating the budget. A spokesman for House Speaker John Boehner says President Obama will “have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

Professor Bloch says the timing was up to the courts, not the president.

"Previously, when the constitutionality of this law has come up, the Obama Administration has been able to not hit it head on."

The question of the constitutionality of the Defense of Marriage Act is expected to eventually wind its way to the US Supreme Court.

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