The Justice Department on Thursday filed a motion justifying the Defense of Marriage Act in the U.S. Court of Appeals for the First Circuit, appealing a federal judge’s decision that the part of DOMA which defines marriage as between a man and a woman is unconstitutional.
But the appeal makes clear that the Obama administration doesn’t support DOMA, and that the Justice Department was simply following tradition in defending even those laws the executive branch disagrees with.“Indeed, the President supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages,” DOJ writes in the appeal. “But a consensus behind that approach has not yet developed, and Congress could properly take notice of the divergent views regarding same-sex marriage across the states.”
“The Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here,” government lawyers write. “This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and helps ensure that the Executive Branch will faithfully defend laws with which an Administration may disagree on policy grounds.”
DOJ lays out its defense of DOMA with these three arguments, as highlighted by Chris Geidner of Metro Weekly:
1. Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.
2. Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.
3. Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.
Without DOMA, the government argues, “classifications based on marriage for purposes of federal law would depend on the outcome of the same-sex marriage debate in each state, with the meanings of the term under federal law potentially changing with changes in the status of same-sex marriage in a given state.”
“Furthermore, it does not matter whether Congress has legislated on an issue previously. Congressional inaction over time does not remove an area from Congress’s authority. In other words, Congress can supersede historic police powers of the state when it acts with a clear and manifest purpose.”
Justice Department Civil Division attorneys Michael Jay Singer, August E. Flentje and Benjamin S. Kingsley signed the filing, which also names Assistant Attorney General for the Civil Division Tony West and U.S. Attorney Carmen M. Ortiz.
Asked by TPM in November about the government’s defense of DOMA and the recently repealed Don’t Ask, Don’t Tell which banned gay and lesbian men and women from serving in the military, West said the Obama administration was in a “difficult” position.
“The Department of Justice, notwithstanding the administration policy view which is strongly held by us, has an institutional responsibility to defend the constitutionality of congressional statutes, whether we agree with them or not,” West said.
“I think that the best example — let me give you one — in the Defense of Marriage Act — you’ll notice that we have not only discharged our responsibility to defend the constitutionality of a congressional statute, but we’ve done so in a way which reflects the policy values of this administration,” West said.
Working with the Civil Rights Division’s liaison to the gay, lesbian, bisexual and transgender community, the Civil Division worked to make sure briefings in the DOMA case did not advance arguments that the LGBT community would find particularly offensive.
“We disavowed some arguments that we believed had no basis in fact, and in fact we presented the court through our briefs with information which seemed to undermine some of the previous rationales that have been used defense of that statute,” West added.
Late Update: As Politico’s Ben Smith reports, LGBT groups aren’t thrilled:
“There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens,” said Equality Matters chief Richard Socarides in an email. “And that is unacceptable.”
“The Administration claims that it has a duty to defend the laws that are on the books. We simply do not agree. At the very least, the Justice Department can and should acknowledge that the law is unconstitutional,” Human Rights Campaign president Joe Solmonese said in an email to the group’s members, signaling that even the relatively conciliatory group will take a more confrontational tone on marriage. “All families deserve the recognition and respect of their government. It’s time for President Obama to state his support for full, equal marriage. And we want your help in telling him that it’s time.”
DOJ’s filing is embedded below.