In defending DOMA, House Speaker John Boehner argues discrimination against gay men and lesbians is lessening.

House Republicans agreed to defend in court the Defense of Marriage Act (DOMA), the 1996 law which forbids federal agencies from recognizing the legal marriages of gay and lesbian couples, after the Obama administration announced it would no longer.

In briefs filed this week in the case of a widow who is challenging the law, Boehner attempts to minimize the discrimination he is defending.

The case, now on appeal in New York federal court, involves Edith “Edie” Windsor, who received an estate bill of more than $360,000 after the death of her wife Thea Spyer. The two women shared their lives for 44 years and married in Toronto, Canada in 2007. In 2009, New York began recognizing the marriages of gay couples, although gay couples could not enter such unions in the Empire State. Spyer died in 2009.

Attorney Paul Clement writes: “[W]hatever the historical record of discrimination, the most striking factor is how quickly things are changing through the normal democratic processes on issues ranging from same-sex marriage to 'Don't Ask, Don't Tell' and beyond. Historical discrimination alone never has been a basis for heightened scrutiny. Courts apply a multi-factor test that focuses on current reality and cautions against unnecessarily taking issues away from the normal democratic process."

(It should be noted that “Don't Ask, Don't Tell” had been declared unconstitutional by a federal court before Congress acted.)

House Republicans also argue that being gay is a choice, suggest gay couples make bad parents, and the gay community has powerful allies, including President Barack Obama and New York Attorney General Eric T. Schneiderman, both of whom have filed friend-of-the-court briefs on behalf of Windsor.

Clement adds that gay and lesbian couples should be denied equal marriage rights because they cannot conceive children without the assistance of a third party. “Rational justifications” for preserving DOMA include “[D]efending and nurturing the institution of marriage by avoiding the creation of a social understanding that begetting and rearing children is not inextricably bound up with the institution of marriage” and “[D]efending and nurturing the institution of marriage by creating legal structures that make it more likely that children will be raised by parents of both sexes.”