The Obama administration has cushioned
its latest defense of a federal gay marriage ban with a sympathetic
statement that calls the 1996 law unfair.
The administration's first defense of
the Defense of Marriage Act (DOMA), the law that allows states to
ignore legal gay marriage and defines marriage as a heterosexual
union for the federal government, drew widespread
anger from gay leaders and activists when it was filed in June.
“This Administration does not support
DOMA as a matter of policy, believes that it is discriminatory, and
supports its repeal,” the new brief from Justice Department lawyer
Scott Simpson says.
The administration, however, goes on to
say DOMA is constitutional and “reasonable arguments” can be made
in its defense.
“Consistent with the rule of law,
however, the Department of Justice has long followed the practice of
defending federal statutes as long as reasonable arguments can be
made in support of their constitutionality, even if the Department
disagrees with a particular statute as a policy matter, as it does
While it argues in support of DOMA, it
does reject the argument that Congress was justified in defining
marriage as a heterosexual union because it promotes the government's
interest in “responsible procreation.”
The administration's defense comes in a
brief against a gay couple who have sued the federal government in
California, claiming the law is unconstitutional.
Candidate Obama called DOMA “abhorrent”
and promised the gay and lesbian community he would work to repeal
it. The new line from the Justice Department more closely aligns
with what Obama has said.
The brief's defense of DOMA as
constitutional is an important fact, analysts say. An administration
will generally not defend a law it considers unconstitutional. While
Obama's sympathetic statement is a nod to the gay community, it is
far from a repudiation of the law.