Defense Of Marriage Act Defended by Justice Department
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The Department of Justice has issued its appeal of the Defense of Marriage Act, which states the federal definition of marriage as a union between a man and a woman but allows individual states to decide whether to allow same-sex marriages. A federal judge struck down the law in 2010.
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Critics have seen the administration's decision to appeal the ruling as a contradiction with President Obama’s stated commitment to repealing the law, which was passed in 1996 under President Clinton. Obama recently built political goodwill with the wary gay and lesbian community because of the successful push to repeal Don’t Ask, Don’t Tell, the law that banned gays from serving openly in the military.
Obama, who supports civil unions over same-sex marriage, also recently indicated his “evolving” views on the issue.
Gay rights groups spoke out strongly when the administration announced it would challenge the judge’s decision to strike down the law, but the Justice Department has repeatedly stated that it obligated to defend laws enacted by congress – even those with which the President disagrees.
The Justice Department’s brief provides an outline of its defense of the law. It reflects the administration’s opposition to the law and offers a narrowly-defined defense that Alex Blaze, in an article on the Huffington Post, describes as “anemic.”
“The Constitution permitted Congress to enact DOMA as a means to preserve the status quo, ensure consistency in the distribution of federal marriage-based benefits, and respect policy developments in the states without implicating other states or the United States, pending the resolution of the debate taking place in the states over whether to permit same-sex marriage,” the Department of Justice lawyers wrote in their argument summary.
The Department of Justice has defined its argument in narrow terms. Their contentions do not rely on the moral, ideologically-charged beliefs against same-sex marriage. They instead focus on more minute justifications, such as maintaining the status quo and the uniformity of federal law, said Clyde Spillenger, a law professor at UCLA.
“They’ve basically disavowed the arguments based on the attempt to preserve traditional marriage and so on and so forth, and they’ve basically gone with some not-terribly-persuasive, more neutral-sounding technical issues,” Spillenger said. “They’re not doing it with a lot of relish.”
The administration has decided to justify the law based on the contention that it maintains the status quo while allowing the states to decide for themselves whether to legalize same-sex marriage.
Gay rights groups have voiced their anger over the brief, despite the half-heartedness of the arguments presented, as Politico’s Ben Smith put it.
"It's quite hard to defend the indefensible, and the government's attempt to save DOMA is an example of that," said Peter Renn, an attorney from LAMBDA Legal, a firm that advocates for gay rights. "And no amount of lawyering by the DOJ braintrust can overcome the cold, hard reality that DOMA irrationally singles out same-sex couples"
This comes as the fight over Proposition 8 - the California ballot initiative outlawing same-sex marriage - continues to wind its way through the California court system.
The debates over both Prop 8 and the Defense of Marriage Act have been tied up in the issue of who will defend the laws that have been challenged. Both Arnold Schwarzenegger and Jerry Brown – respectively the Governor and Attorney General at the time measure was struck down – refused to defend Prop 8.
The legal debate for and against Prop 8 has a somewhat different focus from the one over the Defense of Marriage Act, Spillenger said. Whereas the opponents of Prop 8 argue against it mainly by using the equal protection clause of the Constitution, the legal conflict over the Defense of Marriage Act has more to do with Congress's right to legislate on such issues.
“The equal protection issue is much more straightforward in the Prop 8 case because all states have general power to legislate with respect to marriage and domestic relationships,” Spillenger said.
“In this case about DOMA, because the statute being challenged is a federal statute, there’s this additional overtone of whether or not Congress actually has the authority to get into these things at all.”
