The Obama administration filed court papers Monday claiming a federal marriage law discriminates against gays, even as government lawyers continued to defend it. Justice Department lawyers are seeking to dismiss a suit brought by a gay California couple challenging the 1996 Defense of Marriage Act. The administration's response to the case has angered gay activists who see it as backtracking on campaign promises made by Barack Obama last year.
In court papers, the administration said it supports repeal of the law. Yet the same filing says the Justice Department will defend the statute in this case because a reasonable argument can be made that the law is constitutional.
The government's previous filing in the case angered gay rights activists who supported Obama's candidacy in part because of his pledge to move forward on repealing the law and the "don't ask, don't tell" policy that prevents gays from serving openly in the military. "The administration believes the Defense of Marriage Act is discriminatory and should be repealed," said Justice Department spokeswoman Tracy Schmaler, because it prevents equal rights and benefits. The department is obligated "to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration's policy preferences," Schmaler added...
And once more with feeling: the above statement by the administration is entirely untrue. If the government feels that a given law is unjust or unconstitutional, they can simply flatly refuse to defend it. The courts may well refuse to accept this and order the administration to mount a defense, but absent that situation, the government simply is not required to defend a law just because it's on the books.
And that argument is truly baffling. Presumably, allowing gay married couples to receive federal benefits would apply only in those states that recognize such marriages in the first place. You would have to not only be married in one of those states, but to reside in one in order to claim the benefit. How does this have the least effect on anyone in those other 30 states? Moreover, a more logical argument is that prohibiting those benefits to those residents in states that do recognize such marriages is an infringement on the rights of those individuals, since it rather clearly is such, and is intended to be such.
At least the government seems to have scaled back the use of those repellant arguments in support of DOMA. In fact, the filing seems curiously limited, given the mess that they advanced last time.
As noted before, this case is coming out of Orange County, so the government should win easily at the district court level. It will be fascinating to see what the 9th Circuit Court of Appeals does with the case after that, but that's going to be a few years down the line, most likely.Posted by iain at August 17, 2009 11:43 AM