Lawyers for the Christian-based Alliance Defense Fund (ADF) said Monday that President Obama's defense of the Defense of Marriage Act (DOMA) was not “optimal.”

As intervenor in Smelt v. United States, the ADF is promoting the argument that there is a government interest in “responsible procreation.”

In a Monday filing, the Department of Justice took a swipe at that argument, saying: “... the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality.”

“It is very disappointing that the [Justice Department] has rejected the idea that kids do best in homes with a married mother and father,” ADF attorney Brian Raum told Baptist Press.

DOMA was signed by President Bill Clinton. The law defines marriage as a heterosexual union for the federal government and allows states to ignore legal gay marriages performed elsewhere. Candidate Obama called the law “abhorrent” and promised he would repeal it. But the administration's first filing in Smelt said the law did not discriminate against gay and lesbian couples and was laced with archaic anti-gay arguments, angering gay leaders and activists.

On Monday, Obama lawyers said DOMA was constitutional and defensible, but cushioned their arguments with a statement that calls the 1996 law unfair.

“With respects to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal,” the brief states.

“They've taken the precarious decision of defending DOMA while at the same time claiming that it's bad policy … [I]t is certainly not optimal for the attorney who is defending a particular law to concede that their clients believe it's bad policy. I think that's detrimental to the case,” Raum added.

The administration's defense comes in a brief against a gay couple – Arthur Smelt and Christopher Hammer – married in California before the enactment of Proposition 8 who have sued the federal government for recognition of their marriage.

The Department of Justice is arguing that the Orange County couple have not been harmed by DOMA because they have not applied for federal benefits.

(Federal suits moving forward in Massachusetts, where gay marriage has been legal for five years, include gay and lesbian couples who have been denied federal benefits.)

While social conservatives railed against the administration's softened tone against DOMA, gay activists welcomed the new language.

“I guess this is a step in the right direction,” John Aravosis, one of the most vocal opponents to the administration's June filing, said in a blog post at

Carisa Cunningham, director of public affairs for Gay & Lesbian Advocates & Defenders, told the Los Angeles Times that the brief's support of DOMA as constitutional is “simply wrong,” then added: “But this administration, contrary to its predecessors, has acknowledged the reality that children are part of families with gay and lesbian parents and those children can grow up as well adjusted as anyone else. That's a very important acknowledgment, and it is also important legally.”

Similar sentiments were shared by National Center for Lesbian Rights Executive Director Kate Kendell in a statement Monday: “We appreciate that the Department of Justice has acknowledged that DOMA is a blatantly discriminatory measure that must be repealed.”

“We remain disappointed that the Department of Justice continues to defend DOMA and to argue that laws that discriminate based on sexual orientation do not raise serious constitutional problems,” Kendell added.

Representative Mike Quigley, a Democrat from Illinois and a member of the Congressional Lesbian, Gay, Bisexual and Transgender Equality Caucus, called the administration's softened tone “encouraging.”

“Even though DOMA continues to be upheld, we are seeing cracks in the foundation upon which opponents have built their case for decades,” Quigley said in an email. “We will continue to fight to tear down the wall of inequality until everyone is treated not only with fairness and respect, but with equity under the law.”