Brody's Notes... Obama Administration Files What Some Term "Lukewarm" Defense Of DOMA- NOM Angrily Reacts

By Mark Singer (Washington DC) JAN 14 | In a court filing yesterday, that addressed two separate challenges to the Defense of Marriage Law, the Department of Justice lawyers single filed for both Gill v. Office of Personnel Management and Massachusetts v. United States in answer to U.S. District Court Judge Joseph Tauro's ruling last July which found Section Three of DOMA -- which sets a federal definition for "marriage" and spouse" -- is unconstitutional.

MetroWeekly's Political Editor, Chris Geidner reported that the government asserted:

DOMA is supported by rationales that constitute a sufficient rational basis for the law. For example, as explained below, it is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states.

When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving, and as is well-established, the “science of government . . . is the science of experiment.” Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society. That recognition has prompted ongoing dialogue and change in many states, with some states opting to authorize same-sex marriages and other states opting for other forms of legal recognition for same-sex couples, such as civil unions and domestic partnerships. Still other states have reexamined their legal systems and reaffirmed their support of their preexisting concept of marriage and provided that their constitution or laws authorize only marriages between a man and a woman. In the end, the large majority of states today do not recognize same-sex marriage.

The government lawyer based those assertions, [Brief (.pdf)] , on the following premises:

1. Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2. Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3. Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

Mary Bonauto, speaking from GLAD, who won the case:

“We see nothing really new in this brief, which reiterates many of the same arguments the government made in the District Court,” said Mary L. Bonauto, who is leading the DOMA team for GLAD. “We’re prepared to meet these arguments head-on, and bring to an end the discrimination that is suffered by married same-sex couples like our plaintiffs and that DOJ has admitted is caused by DOMA.” 

Equality Matters' Richard Socarides in an e-mail response said:

"There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens... And that is unacceptable."

The filing drew harsh words from the head of the National Organization for Marriage Brian Brown:

“This is an attack not only on marriage, but on the prerogatives of Congress.”

NOM's Press release read:

The National Organization for Marriage (NOM) responded today to Obama’s Department of Justice (DOJ) as they filed a brief pretending to defend the Defense of Marriage Act (DOMA).

“The DOJ brief amounts to collusive litigation, failing to even offer to the court, much less vigorously defend, the reasons Congress laid out in the statute when it passed DOMA—especially responsible procreation. This is an attack not only on marriage, but on the prerogatives of Congress. The Executive branch should not attempt to exercise this kind of retroactive line-item veto over a bill passed by Congress,” said Brian Brown, president of NOM.

DOMA, which was passed by bipartisan majorities in 1996, defines marriage for the purpose of federal law as the union of one man and one woman. In the statute, Congress laid out four reasons justifying this definition of marriage including “responsible procreation.” Courts in New York, Maryland and elsewhere have accepted this reason as the rational basis for marriage’s definition. The DOJ brief formally defending DOMA, pointedly and explicitly repudiates the idea that responsible procreation is a purpose of DOMA, significantly undercutting the efforts of the Congress.

“All the parties to this litigation want the court to strike down DOMA; this is clear from their behavior, no matter what President Obama and his politicized DOJ pretend to convey to the public,” said Brown, “If Obama’s DOJ had merely honestly refused to defend the law, the court would likely have permitted another party to intervene to defend the law. Obama’s DOJ is trying to retain control so it can lose this case.”