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

A conservative legal scholar, testifying to a House subcommittee, says the Justice Department sowed the seeds for the demise of the Defense of Marriage Act even as it publicly defended it.

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

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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.

'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.

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