DOMA: Was the Obama administration only pretending to defend it?

A conservative legal scholar told members of Congress on Friday that the Obama administration engaged in a two-year charade, pretending publicly to defend the 1996 Defense of Marriage Act while quietly planting seeds for its demise.

Edward Whelan, president of the Ethics and Public Policy Center, made the comments in testimony before the House Judiciary Subcommittee on the Constitution.

He said in 2009 the Justice Department watered down its legal argument in defense of DOMA in a California case challenging its constitutionality. Whelan said the change was made after gay rights activists complained to the White House about the tough position the Obama administration had staked out in the case.

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“The Department of Justice has only been pretending to defend the Defense of Marriage Act while it has actively been working to sabotage it,” Mr. Whelan said.

Friday’s hearing was called as part of a Congressional examination of Attorney General Eric Holder’s announcement in February that Justice Department lawyers would no longer defend DOMA in legal challenges.

Mr. Holder said that both he and President Obama had concluded that DOMA was unconstitutional. The law defines marriage as being between one man and one woman and limits the distribution of federal benefits based on that definition.

House Speaker John Boehner has pledged to hire lawyers to replace the Justice Department in defense of the act.

The debate over gay rights and same-sex marriage has flared up in states across the country as well as in the halls of Congress.

“No one can seriously believe that the Constitution’s authors intended to create a right to same-sex marriage,” said Judiciary Committee Chair Lamar Smith (R) of Texas.

“By refusing to defend DOMA from legal challenges the administration has invited courts to overrule that law,” he said.

'A red herring'

New York Congressman Jerrold Nadler, the ranking Democrat on the committee, said the argument that the administration acted inappropriately in DOMA cases “is a red herring.”

“The real question,” he said, “is whether anyone should be defending this abhorrent and immoral law.”

Mr. Nadler is a co-sponsor of the proposed “Respect for Marriage Act,” which would repeal DOMA and make all federal benefits available to all married couples regardless of gender.

To date, five states – Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts – as well as the District of Columbia, grant full recognition to same-sex marriages.

Forty-five states restrict marriage to a union between one man and one woman.

Supporters of DOMA have questioned the sincerity of government efforts in pending federal cases involving DOMA. They have accused government lawyers of failing to mount a vigorous and effective defense of the 1996 law as is required under the executive branch’s oath to faithfully uphold the laws of the United States.

Legal analysts acknowledge that the law also permits a president to notify Congress when the executive cannot in good conscience defend a statute.

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