Obama asks Supreme Court to overturn gay marriage ban

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The Barack Obama administration took another step toward institutionalising gay marriage, formally asking the US Supreme Court to strike down a 1996 law defining marriage exclusively as a union between a man and a woman.

The request was contained in a legal brief filed yesterday with the US court, whose nine justices will next month review whether or not to repeal the federal Defence of Marriage Act (DOMA), which bans marriage between homosexuals.

The document marks the first time a President has endorsed same-sex marriage rights before the Supreme Court. According to the filing, the Defence of Marriage Act “violates the fundamental constitutional guarantee of equal protection” before the law stipulated by the US Constitution.

DOMA “denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” read the brief signed by US Solicitor General Donald Verrilli.

The case before the Supreme Court involves Edith Windsor, a lesbian who married in Canada in 2007 but whose spouse and partner of 40 years died. She was required to pay more than $360,000 in federal estate taxes because she was not considered married under DOMA.

The White House position, however, came under fire from the Republicans in the House of Representatives. In a brief filed yesterday, they insisted they have a legal right to defend the law in the Supreme Court in the absence of a defence from the executive branch.

Last month, 10 US Senators urged the court to uphold the act and not to recognise same-sex marriages from other states. All of these senators had voted for the Defence of Marriage Act and in a friend-of-the-court brief, they said it was inconsistent for the justice department to have assured the Congress the law was constitutional while it was being crafted in the mid-1990s only to raise questions now.

“The time to speak was in 1996, when the Congress gave careful consideration to the need for DOMA,” they argued. The Obama administration’s decision to challenge the law comes as little surprise. Obama has signalled on various occasions recently that he is that he is in favour of gay marriage.

During his second inaugural address last month, the president drew parallels between the struggle for gay rights and the Civil Rights movement of past decades.

“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal as well,” Obama said.