On February 23rd,  US Attorney General, Eric Holder, announced that the Obama Administration will not defend the constitutionality of Section 3 of the Defense Of Marriage Act as applied to same-sex married couples. Section 3 explicitly defines marriage for federal purposes as between a man and a woman. This declaration is important because two cases are currently pending in the Second Circuit,Pedersen v. OPM and Windsor v. United States. Because the Second Circuit has no established precedent for how to interpret sexual-orientation discrimination cases, the Department of Justice under the Obama Administration must now determine whether these cases are subject to a more heightened standard of review than the rational basis standard.

Holder made clear that while the DOJ would cease to defend Section 3, they would still represent the United States’ interest in other portions of the current litigation. Holder also stated the Administration, in what almost seems contradictory, intends to enforce the law “unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” On March 4, the GOP announced a plan to defend DOMA, but to date only a legal advisory group has been convened.