A quiet legal debate has begun over whether the Obama administration is fighting in court for the right for gays to be married. This week the Department of Justice filed a brief in a court case that defends the legality of the Defense of Marriage Act, and also urges its repeal. Two legal analysts differ on whether Obama's lawyers are helping or hurting the cause of gay marriage.
- Good News for Gay Rights The Volokh Conspiracy's Dale Carpenter interpreted the department's counterintuitive two-step as a heightening of its anti-DOMA language. Indeed, it is "helping knock out a leg from under the opposition to gay marriage," he wrote. The language from its brief will be cited by litigants against DOMA and "no doubt make its way into judicial opinions." Carpenter writes that DoJ also implies that the idea that same-sex parents, because they can't procreate, should be ineligble from marriage is no longer a legitimate government interest that can uphold DOMA's constitutionality. "While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA," he wrote, "they should be delighted by the turn taken in this reply brief."
- It's Still Discrimination AMERICAblog's "In the end, they're still defending a discriminatory law that the president himself has called 'abhorrent.' The fact that they're doing it more tactfully is, I suppose, nice - and they are no longer using language that undercuts us on a variety of other civil rights, so that's good - but again, we're praising them for no longer doing things that they shouldn't have done in the first place." Aravosis said DoJ shouldn't defend a law that it considers bad policy.
- Obama's View President Obama said that he wants the policy overturned by Congress, which is to say he wants this done through the legislative branch, not the judicial branch. The National Review's Ramesh Ponnuru said it wouldn't be hard for a congressman to draft such a bill, though none has been introduced yet.