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It is turning out to be a historic year for same-sex marriage legislation – the Maryland Senate passed Bill 116 on February 24th and on that same day – President Obama gave his opinion that Section 3 of DOMA is unconstitutional and it would no longer be defended.

In regards to DOMA, the issue boils down to one of discrimination. President Obama believes that gays and lesbians meet the criteria for a “higher level of scrutiny” in discrimination cases which would afford gays and lesbians the same protections that other groups receive.

To achieve this higher level of scrutiny, four criteria must be met:

  1. Whether the group in question has suffered a history of discrimination
  2. Whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”
  3. Whether the group is a minority or is politically powerless; and
  4. Whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985). (Excerpted from the Washington Post).

Attorney General Eric Holder outlined the administration’s belief that gays and lesbians meet these four criteria in a letter to House Speaker John Boehner.

What this stance means is that the DOMA law, as currently written, could no longer be used to deny same-sex marriage.

However, there are still many political machinations that will ultimately affect the outcome. There is a March 11 deadline for filing arguments, and it will likely take an act of Congress to repeal DOMA, which was an act of Congress to begin with.

Like many controversial issues, the debate over the constitutionality of DOMA is going to be a long and complicated one, but the fact that President Obama has taken a firm stand on the topic is a historic and exciting development.

If you have questions about same-sex marriage issues in Maryland, DOMA or other areas of family law please do not hesitate to contact Mary Ellen Flynn online, or by calling 301-563-6685.