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

'Powerful political constituency'

Carlos Ball, a law professor at Rutgers University, told members of Congress that it was “entirely appropriate for an administration to make its own judgment” about whether to defend a statute it considers unconstitutional.

Whelan said the administration used its position to undercut DOMA. He accused the administration of siding with gay rights activists behind the scenes while publicly posing as defenders of the law.

The administration "sought to favor a powerful political constituency,” he said, adding that the administration’s ultimate goal was to “induce the court to invent a constitutional right to same-sex marriage.”

“The matter would have been quite different if President Obama when running for president had said ‘I believe there is a right to same-sex marriage,’ ” Whelan said. Obama told prospective voters during the campaign that he did not support gay marriage.

Democratic members of the subcommittee questioned why Attorney General Holder had not been called to testify at the hearing. Subcommittee Chair Trent Franks (R) of Arizona said the attorney general would be asked to testify at a hearing next month.

Public documents in the California case and a subsequent case filed in Boston show the administration did significantly alter its legal argument midway through the California case.

Among points made in its opening brief in that case, Justice Department lawyers asserted: “DOMA does not discriminate, or permit the states to discriminate, on the basis of a suspect classification.”

Two months later, the lawyers at the Justice Department filed a follow-up brief. It said in part: “This administration does not support DOMA as a matter of policy, believes it discriminates, and supports its repeal.”

The follow-up brief went on to explain that the administration would continue to defend the law “as long as reasonable arguments can be made.”

Procreation and child-rearing

Many supporters of DOMA cite “responsible procreation and child-rearing” by the married biological parents of a child as one of the best justifications for a government preference for heterosexual marriage.

In the follow-up brief, the government then conceded that it did not believe DOMA was “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.”

One month later, the same group of Justice Department lawyers repeated this concession and withheld other arguments in a new government brief filed in the Boston challenge to DOMA.

For example, rather than focusing on the Supreme Court’s majority opinion in the landmark 2003 gay rights decision, Lawrence v. Texas, the government’s brief focused on the comments of dissenting conservative Justice Antonin Scalia.

Justice Scalia blasted the Lawrence majority for potentially opening the door to lawsuits seeking to establish a constitutional right to same-sex marriage.

In contrast, the majority opinion in the Lawrence case stated that the decision did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

The government’s concession concerning procreation and child-rearing was not insignificant. US District Judge Joseph Tauro cited it in his opinion last summer in the Boston case.

“This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA,” he wrote.

Judge Tauro’s decision has been widely praised as a landmark among opponents of DOMA. It marked the first time any federal court has declared DOMA unconstitutional.

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