This post may be updated and revised.
Update II: The Christian Post:
Traditional marriage supporter Brian Raum, senior counsel of the Alliance Defense Fund, isn’t surprised by the administration’s opposition to the marriage law but calls it a tragedy.
“The administration stands against the vast majority of Americans who have voted decisively to protect marriage every time marriage is on the ballot,” Raum said. “Though it’s no surprise that the administration opposes DOMA, it’s a tragedy for America’s children that our leaders don’t believe that every kid has a right to both a mom and a dad.”
Update I: Dale Carpenter writes at The Volokh Conspiracy:
What a difference two months can make. While the DOJ hasn’t retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance . . . [I]t now appears to be the view of the executive branch that the social interests in child-rearing and procreation do not even rationally justify the exclusion of gay couples from marriage . . . This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.
Press releases: ACLU | Lambda Legal
__________________________
Associated Press: “President Barack Obama insisted Monday he still wants to scrap what he calls a discriminatory federal marriage law, even as his administration angered gay rights activists by defending it in court.”
President Obama’s comments followed the filing of the Department of Justice’s reply brief in Smelt v. U.S., No. SACV09-00286 DOC (MLGx) (C.D. Cal). According to the Associated Press, Obama said that his administration’s position in the California case “is not about defending traditional marriage, but is instead about defending traditional legal practice.” Indeed, several commentators, Politico‘s Josh Gerstein for example, have noted the contrast between its tone and that of the DOJ’s initial filing in the case. Gerstein writes:
In a brief filed Monday morning in a lawsuit challenging the validity of DOMA, the Justice Department put on the record that the administration favors repeal of the statute — a position that was omitted from a controversial legal filing the department made in June . . . Gay and lesbian activists and many liberals were deeply troubled by a brief the government filed in June which sought to defend DOMA by invoking cases barring uncle-niece marriage, first-cousin marriage, and underage marriage. Many in the gay community said the Obama administration was reinforcing suggestions by social conservatives that allowing gay marriage could lead to legalizing incest or pedophilia.
Here are the relevant excerpts from the Department of Justice’s reply brief in Smelt v. U.S. NO. SACV09-00286 DOC (MLGx) (C.D. Cal):
With respect to the merits, 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. . . .
Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is 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.
And from the DOJ’s intitial brief in the case (filed 6/11/09):
The House Judiciary Committee went on to state that Section 3 of DOMA merely codifies, for purposes of federal law, the definition of marriage set forth in “the standard law dictionary.” In explaining why Congress chose to limit federal marital benefits to opposite-sex couples, the Committee acknowledged that “[t]here are relations of deep, abiding love” between persons of all kinds, “brothers and sisters, parents and children, grandparents and grandchildren,” that “cannot be diminished as loves [just] because they are not . . . expressed in marriage.” Nevertheless, the Committee stressed, DOMA grants “preferred legal status” to a particular kind of loving relationship — heterosexual marriage — based on four asserted government interests. First, the Committee advanced an interest in “defending and nurturing the institution of traditional, heterosexual marriage” because of the role it plays in “procreation and child-rearing.” Second, the Committee believed that DOMA furthered Congress’s asserted interest in “traditional notions of morality.” Third, the Committee maintained that DOMA advances the government’s interest in “protecting state sovereignty and democratic self-governance.” Fourth, the Committee explained that DOMA advances the government’s interest in “preserving scarce government resources” . . .
When States began to consider adopting historically novel forms of marriage, Congress took a wait-and-see approach. It codified, for purposes of federal benefits, a definition of marriage that all fifty states had adopted (i.e., that between a man and a woman) and continued to accord financial and other benefits on the basis of that historical definition. At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA’s passage (and only a very small minority of States have since). Thus, by defining “marriage” and “spouse” as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize. . . .
Congress makes a wide array of federal financial and other benefits available to men and women united in marriage — to the exclusion of all other human relationships (save for that of parent and minor child), not just same-sex marriage. In enacting DOMA, Congress (1) recognized the right of some States to expand the traditional understanding of marriage while, at the same time, it (2) protected the rights of other States to adhere to their traditional understandings of the institution, and (3) maintained the longstanding federal policy of affording benefits to the traditional, and universally recognized, version of marriage. This measured response to society’s evolving understandings of marriage is entirely rational. Indeed, under rational basis scrutiny, Congress is entitled to respond to new social phenomena one step at a time, and to adjust national policy incrementally. DOMA reflects just such a response. It adopts on the national level, and permits on the state level, a wait-and-see approach to new forms of marriage. DOMA thus maximizes democratic flexibility under our federalist scheme, by simply preventing some States from requiring other States and the federal government to grant benefits to forms of marriages that, under their own constitutions, state or federal governments are not obligated to recognize. Because it is rationally related to legitimate governmental interests, plaintiffs cannot overcome the “presumption of constitutionality” that DOMA, like all federal statutes, enjoys.
Despite the apparent differences between the two briefs, the Obama Administration has maintained the “defending legal practice” line since at least June. After the initial filing, Justice Department spokesman Matt Miller sent this email to Politico‘s Ben Smith:
As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.
In today’s press briefing, Press Secretary Robert Gibbs followed suit:
Q Switching topics. There’s a same-sex benefits announcement this afternoon. There are a number of folks who feel like this is too little too late. Can you talk about why people should see this as more than kind of an empty gesture or just a symbolic move on his part?
MR. GIBBS: This, I think as you’ll hear the President say later today, believes this is a matter of fairness. The President is committed to ensuring that fairness, as well as working on and fulfilling other promises that he’s made in the campaign around things like DOMA and “don’t ask, don’t tell.”
Q But wouldn’t it also be fair to extend benefits such as the right to have health insurance — a health insurance plan or pension plan?
MR. GIBBS: Well, that requires not an executive order or presidential memorandum but a change in the law.
Q And is he going to push for that?
MR. GIBBS: That’s — part of what he’s promised on repealing DOMA would have an impact on that.
