Bill Clinton pushed through the 1996 Defense of Marriage Act that bars the federal government from recognizing same-sex marriages. Gay couples have challenged the constitutionality of denying them the same benefits as other married couples. The Justice Department is now seeking to have their lawsuit dismissed. It insists that it must defend the law and claims the lawsuit is meritless. The Administration challenges the right of gay couples to demand such benefits.
It is arguable where the Justice Department must defend such laws in this way if it views this law to be unconstitutional. There are, in my view, a number of alternative options. First, it could have elected not to seek dismissal as opposed to ruling on the merits. As in prior cases dealing with electronic surveillance and torture, the Administration is fighting to block citizens from having a court review the matter by challenging standing and the cause of action. Of course, the Justice Department could argue that, even with a dismissal, the Court will have to reach the threshold question of whether these couples have any legal claim and, if they do not, there is no reason to proceed beyond that threshold question.
Second, it could offer a more nuanced defense that the law may be unconstitutional under certain circumstances or could be found unconstitutional if the court recognizes certain protections for gay couples. The Administration could recognize in its filing that these couples should have recognized rights to benefits as married couples and even question the constitutionality of DOMA (if it believes that it is unconstitutional to deny married status on the basis of sexual orientation). While the Administration cites prior precedent against such claims, it does not indicate any support for the constitutional claims of gay couples. On the merits of the lawsuit, there is little difference between the positions of Bush and Obama Administrations.
Third, though admittedly novel and rare, the Department could have an outside attorney defend the law if the Department views the law as unconstitutional or discriminatory. If the Administration views this law to be discriminatory, it can convey its view by declining to defend it directly while appointed a specially appointed attorney to do so. While the filing acknowledges support for gay and lesbian couples, it seems to support them in a potential legislative setting rather than a constitutional claim.
There is certainly an argument to be made that the Justice Department must defend federal laws. However, even if this aggressive approach is warranted, it would be far more convincing if the Obama Administration was seeking the repeal of DOMA in Congress. It could easily put such a measure on the agenda in the Democratically-controlled House and Senate. Obama previously supported such a move, but his Administration is now believed to be privately opposed to such a vote in this Congress. Gay activists are objecting that they have once again been given a bait and switch by the Democrats. Obama worked hard to secure gay and lesbian votes during the election, but his Administration has not been aggressive in seeking reforms from the terminatin of the “don’t ask, don’t tell” policy to the DOMA issue.
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