OBAMA ADMIN SHIFTS GEARS ON DOMA…. In June, the Justice Department filed a brief defending the Defense of Marriage Act against a legal challenge, despite the president’s stated opposition against the law itself. Whether the administration was required to defend the law became the subject of some debate, as was the content of the brief itself, which was considered controversial among supporters of gay rights.
Today, the administration shifted gears on the matter.
President Obama hasn’t changed his policy, but he is softening his tone. Today, the Department of Justice filed a response to a legal challenge to the Defense of Marriage Act for the second time since Obama took office.
When DOJ first did this, its brief was full of rhetoric that appeared to supporters to be over-the-top and anti-gay. The White House — and the Justice Department — seemed to have taken the criticisms to heart. Their challenge in this case defends the idea that the government must defend constitutional laws — even wrong-headed ones, but notes that the Obama administration opposes the substance of the policy.
In an unusual and encouraging gesture, the White House issued a statement making the president’s position on the larger issue clear. The statement, distributed to groups supporting gay rights and appearing above the president’s name, said, “This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.”
Justice Department lawyer Scott Simpson added the administration doesn’t really have any choice in terms of the DOMA defense: “This Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, 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 Department disagrees with a particular statute as a policy matter, as it does here.”
This unambiguous explanation of the president’s position was not part of the June filing. What’s more, Josh Gerstein noted that the new brief “explicitly rejected arguments put forward by conservative groups that the importance of marriage for child rearing is a legitimate justification for DOMA’s ban on federal recognition of same-sex unions.”
I think it’s safe to say the White House got the message earlier this year.