NEW YORK — A federal appeals court panel forced a Justice Department lawyer into an awkward position Thursday, making him explain the government's decision to abandon defending the Defense of Marriage Act as judges decide the fate of a law destined for the U.S. Supreme Court.
"In my day, when you won, you didn't appeal," a smiling Chief Judge Dennis Jacobs of the 2nd U.S. Circuit Court of Appeals told Acting Assistant Attorney General Stuart Delery after Delery rose from his seat near lawyers defending the law even as he seemed to speak out against it.
Later, Judge Chester Straub demanded to know why the government quit defending the constitutionality of a 1996 law that defines marriage as involving a man and a woman after having spoken in favor of it for nearly 15 years.
Delery said the switch came in early 2011 at the direction of President Barack Obama and Attorney General Eric Holder after the administration reviewed the law and concluded that it deserved a stricter view of what constituted discrimination than the legal reasoning that had previously been applied.
Months from now, the 2nd Circuit is expected to rule whether Manhattan Judge Barbara Jones was right when she found the law unconstitutional in June, just like several other federal judges and a federal appeals court in Boston have done.
Repeatedly, Delery spoke about discrimination in America against people over their sexual choices.
"Gay and lesbian people have been subjected to a long history of discrimination that continues to this day," he said.
He called the expression of sexual orientation "an integral part of human freedom."
Yet, he added: "It's still the case that the rights of gays and lesbians usually lose when put up for a vote."
He said it was "crystal clear" that passage of the law was "motivated in significant part by disapproval of gay and lesbian people."
Straub responded with a snap: "Did you tell that to Congress in 1996, what you just now told us?"
Delery said some letters may have been sent to some representatives at the time.
"What is it that changed your view?" Straub demanded before Delery explained the February 2011 switch by Obama and Holder.
Jones ruled that the law intrudes upon the states' regulation of domestic relations. Her decision came after Edith Windsor sued the government in November 2010 because she was told to pay $363,053 in federal estate tax after her partner of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.
The law, which denies federal recognition of same-sex marriages and affirms the right of states to refuse to recognize such marriages, was passed by Congress and signed by President Bill Clinton after it appeared in 1993 that Hawaii might legalize gay marriage. Since then, many states have banned gay marriage but several have approved it, including Massachusetts and New York. Justice Ruth Bader Ginsburg said last week she believes the Defense of Marriage Act will reach the Supreme Court within the next year.
Lawyer Paul Clement, speaking on behalf of the Bipartisan Legal Advisory Group of the House of Representatives, which is defending the law, told the appeals court that the Defense of Marriage Act was consistent with the intention of Congress to continue "preserving programs the way they've always been – not opening these programs to others."
He said the desire to save the government money was a rational basis for the law as well, though "you can't go about that rational basis in an irrational way."
As an example, he said the government cannot deny benefits to blue-eyed people.