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DOJ appeals bankruptcy ruling striking down federal same-sex marriage ban

The US Department of Justice (DOJ) [official website] filed an appeal in the US Court of Appeals for the Ninth Circuit [official website] on Monday contesting a bankruptcy court ruling [opinion, PDF; JURIST report] that the Defense of Marriage Act (DOMA) [text; JURIST news archive] is unconstitutional. DOMA is a federal law barring same-sex marriage [JURIST news archive], even if it is legalized in a state. The DOJ previously declared [JURIST report] that it would no longer defend the constitutionality [press release] of Section 3 of DOMA, which defines marriage for federal purposes as a legal union between one man and one woman, in court cases challenging the provision. Assistant US Trustee [official website] Jill Sturtevant, who had earlier attempted to dismiss [text] the joint filing, stated [AP report] that they were appealing to give Congress a chance to "weigh in" on the constitutionality of DOMA. Earlier this year, House Speaker John Boehner (R-OH) [official website] announced [JURIST report] that he was launching a legal advisory group to defend DOMA [press release]. Boehner declined to defend DOMA in this case, deciding it was not worth the resources to overturn a bankruptcy decision. In an event for gay pride on Wednesday night, President Barack Obama reinforced that the DOJ was not defending DOMA in court [ABC News] and that he had fulfilled every promise he made to the LGBT community.

Congressional Democrats introduced [JURIST report] legislation [text] in March to repeal DOMA after Obama pledged to no longer defend it, and Boehner said the House would independently defend the law. Attorney General Eric Holder [official profile] acknowledged that the announcement marks a change in policy for the DOJ and the Obama administration, but noted that the change was necessary due to cases pending in the US Court of Appeals for the Second Circuit. Holder explained that when the DOJ previously defended DOMA it had done so in jurisdictions with binding precedent stating that a permissive standard of review was applicable to laws dealing with sexual orientation. The announcement came just one month after the DOJ filed a brief [JURIST report] with the US Court of Appeals for the First Circuit [official website] defending the constitutionality of DOMA. The appeal followed a July ruling [JURIST report] by the US District Court for the District of Massachusetts, which found that Section 3 of DOMA violates both the Equal Protection Clause under the Fifth Amendment and State Sovereignty under the Tenth Amendment [text].

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