Published January 14, 2011
Gay rights advocates are criticizing the Obama Justice Department after its attorneys filed a court motion Thursday in support of the Defense of Marriage Act despite the president's view that the law should be repealed.
The Defense of Marriage Act defines marriage as a union between a man and woman -- a provision the administration has suggested is ripe for scrutiny after Congress repealed the "don't ask, don't tell" policy banning gays from serving openly in the military. But the Justice Department nevertheless filed a brief this week before the U.S. Court of Appeals for the First Circuit in defense of the law after a lower-court judge ruled it unconstitutional.
The Justice Department says it's obligated to defend U.S. policy regardless of the president's personal beliefs. The department made the same case after it had to, awkwardly, fight a judge's ruling against "don't ask, don't tell" in the months before it was repealed by Congress.
But that's no salve to the gay rights community, which has called on the administration to show more resolve against laws like DOMA.
"All families deserve the recognition and respect of their government. We know the president supports us. It's time for him to help lead the American public toward full equality for all Americans," Human Rights Campaign President Joe Solmonese said in a statement. The gay rights group said the Justice Department should at least "acknowledge that the law is unconstitutional."
It does not. In its filing, Justice Department attorneys said the law was "not unconstitutional under this court's binding precedent." The Justice Department argued that the law "reflects Congress's reasonable response to this still-evolving debate among the states regarding same-sex marriage."
The administration argued that Congress could "maintain the status quo" while still allowing the states to debate and "take the lead as laboratories" on such issues until a consensus emerges.
"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 administration disagrees with a particular statute as a policy matter, as it does here," the brief said.
"Indeed, the president supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages. But a consensus behind that approach has not yet developed, and Congress could properly take notice of the divergent views regarding same-sex marriage across the states," it said.
President Obama has suggested in recent weeks that his views are "evolving" on same-sex marriage. Currently, he is only on record in support of civil unions.
He told a gay-and-lesbian magazine last month that while a repeal of DOMA may not be possible, particularly with Republicans in control of the House, "that's something that I think we have to strategize on over the next several months."