(EDS.: CHANGES "singling out" to "focusing on" in graf describing the hard test; NO other changes.)
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John Schwartz contributed reporting.
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WASHINGTON — President Barack Obama has balanced on a political tightrope for two years over the Defense of Marriage Act, the 1996 law barring federal recognition of same-sex marriages. Now, two new federal lawsuits threaten to snap that rope out from under him.
Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal the law. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose lawsuits seeking to strike the law down as unconstitutional.
The two lawsuits, however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.
That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful and can choose to change their sexual orientation.
"Now they are being asked what they think the law should be, and not merely how to apply the law as it exists," said Michael Dorf, a Cornell University law professor. "There is much less room to hide for that decision."
James Esseks, an American Civil Liberties Union lawyer helping with one of the new cases, said the new lawsuits could be game-changing.
The Obama legal team has not yet decided what path to take on the lawsuits, according to officials who spoke on condition of anonymity about the internal deliberations. But the Justice Department must respond by March 11. The debate has arisen at a time when Obama has signaled that his administration may be re-evaluating its stance.
As a candidate, Obama backed civil unions for gay people while opposing same-sex marriage. But last month, after Congress — in the final hours before Republicans took control of the House — repealed the law barring gay men, lesbians and bisexuals from serving openly in the military, Obama told The Advocate, a magazine the focuses on gay issues, that his views on marriage rights "are evolving."
"I have a whole bunch of really smart lawyers who are looking at a whole range of options," he said, referring to finding a way to end the Defense of Marriage Act. "I'm always looking for a way to get it done, if possible, through our elected representatives. That may not be possible."
Since 2003, when the Supreme Court struck down laws criminalizing gay sex, the legal landscape for same-sex marriage has shifted. Eight states now grant marriage licenses to same-sex couples or recognize such marriages if performed elsewhere. But under the Defense of Marriage Act, the federal government cannot recognize those relationships.
That has raised a crucial question: Is it constitutional for the federal government to grant certain benefits — like health insurance for spouses of federal workers, or an exemption to estate taxes for surviving spouses — to some people who are legally married under their state's laws, but not to others, based on their sexual orientation?
The Constitution declares that everyone has a right to equal protection by the law. But many laws treat some people differently than others. Courts uphold such policies as constitutional if they can pass a test showing that the discrimination is not invidious.