WASHINGTON, Feb. 23 (UPI) -- U.S. Attorney General Eric Holder said Wednesday the Justice Department will no longer defend a federal law defining marriage as between a man and a woman.
Section 3 of the federal Defense of Marriage Act, which uses the man-and-woman definition, is being challenged in two federal suits filed in New York and Connecticut.
In a letter to House Speaker John Boehner, R-Ohio, and other congressional leaders, Holder said President Barack Obama "has made the determination that Section 3 ... as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment."
Holder said the Supreme Court "has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation," but it has ruled a number of times that "strict scrutiny" -- the toughest level of review -- applies to actions affecting discriminated minorities or the politically powerless.
Given that analysis, "the president has instructed the department not to defend the statute in (the two challenges) now pending in the Southern District of New York and the District of Connecticut," Holder said. "I concur in this determination."
However, members of Congress could defend the section on their own.
Despite the administration's conclusions, "the president has informed me that Section 3 will continue to be enforced by the executive branch," Holder said. "To that end, the president has instructed executive agencies to continue to comply with Section 3 of DOMA ... unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."
Responding to a charge from Boehner that President Obama would "have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation," White House press secretary Jay Carney said the administration "had no choice. It was under a court-imposed deadline to make this decision.""
The court cases "required this decision on its constitutionality, and we had to act because of the deadline," Carney said.