Legal Commentary

DOJ Files DOMA Brief: Law Bad, But Must Be Enforced

By Jeralyn

The Justice Department filed a brief yesterday in a case challenging the Defense of Marriage Act (DOMA). While it says Obama opposes DOMA and thinks it should be repealed, it still recommended the challenge at issue be dismissed.

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.

And in this case, plaintiffs' constitutional claims are unavailing. In their opposition brief, plaintiffs offer only a token response to the United States' arguments on the merits. Indeed, they say nothing at all in response to the arguments concerning their "full faith and credit," right to travel, right to privacy, First Amendment, or Ninth Amendment claims. On that basis alone, those claims should be dismissed.

LA Times reports here.

That ambivalence spurred criticism from both sides of the gay rights battle. Opponents of same-sex marriage accused the White House of insincerity in its defense of the act, and supporters demanded a more proactive approach to ensuring that all citizens enjoy equal protection under the law.

As a candidate for the White House, Barack Obama vowed to repeal the law, which bars the federal government from treating same-sex marriages as legal or granting federal benefits to gay spouses.

According to Justice Department spokeswoman Tracy Schmaler:

"The department's filing in this case upholds the rule of law in keeping with our obligation to defend federal statutes when they are challenged in court," Schmaler said. "The Justice Department cannot pick and choose which federal laws it will defend based on any one administration's policy preferences."

Full post as published by TalkLeft on August 18, 2009 (boomark / email).