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Federal Lawsuits and DOMA

By Roberta A. Kaplan and Julie E. Fink

Throughout the history of this country, whenever the federal government has attached protections or responsibilities to marriage, it has always deferred to the states' determination of whether a couple is validly married. That practice changed in 1996, when the federal government enacted the Defense of Marriage Act (DOMA), which restricts marriage under federal law to a union between one man and one woman. For the first and only time in this country's history, the federal government differentiated between marriages, denying same-sex couples who marry the more than 1000 rights and responsibilities of civil marriage under federal law.

In a ground-breaking decision by President Obama and the Department of Justice (DOJ), on Feb. 23, 2011, Attorney General Eric Holder announced that the President had determined that the unequal treatment of same-sex couples under DOMA violates the Equal Protection clause of the United States Constitution. Holder ordered the DOJ to stop defending DOMA in two cases pending in district courts in the Second Circuit, Windsor v. United States, 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), and Pedersen v. Office of Personnel Management, 310 CV 1750 (VLB) (D. Conn.). This article addresses the immediate and potentially long-ranging impact of that decision on married same-sex couples and their families.

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