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.

Sen. Dianne Feinstein, D-Calif., Sen. Kirsten Gillibrand, D-N.Y., and Jon and Robert Cooper, of Huntington, N.Y., during a March 16 news conference on the bill the senators are sponsoring that would repeal the Defense of Marriage Act (DOMA). The Coopers are a gay married couple with five adopted children. Jon, the majority leader of the Suffolk County Legislature, is holding a photograph of the couple's children.

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.

'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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