01/14/2011 04:48 pm ET | Updated May 25, 2011

The Justice Department's Anemic Defense of DOMA

1. Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2. Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3. Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

In other words, they aren't making a lot of the explicitly homophobic arguments in favor of DOMA that got the Justice Department in trouble with the public in 2009 with their motion to dismiss the Smelt case against DOMA (interesting historical note: the Smelt challenge was eventually dismissed on technical grounds without a peep from the community after the wailing and rending of garments over the brief, which I still consider to be one of the defining moments in the LGBT movement as it completely revealed the nature of our affected and easily-manipulated outrage).

It's nice, though, that the Justice Department seemed apologetic about the fact that they were defending the law in the motion:

"Indeed, the President supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages," DOJ writes in the appeal. "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."

"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," government lawyers write. "This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and helps ensure that the Executive Branch will faithfully defend laws with which an Administration may disagree on policy grounds."

Maybe this is because I'm not a lawyer, but I'm not sure why the Justice Department has to appeal. They defended the statute at trial, they lost, and the law was declared unconstitutional by a federal official and legal scholar who was appointed by the executive and approved by the legislative branch. They could just accept Judge Tauro's arguments about its unconstitutionality.

Moreover, "defending every law" doesn't equate to "exhausting every appeal." Do they have to make arguments, as they argue, "as long as reasonable arguments can be made in support of [DOMA's] constitutionality"? Or could they, like Jerry Brown did with the Prop 8 challenge, defend it at trial and then accept the trial judge's ruling?

Because the arguments don't even sound "reasonable" to me. The first argument, that there has to be "a Period of Evaluation of and Experience" with same-sex marriage, well, I suppose I can't think of a reason there has to be that period of evaluation and why the nearly seven years since Massachusetts started allowing same-sex marriages doesn't count.

The second argument just presented says that the goal is a "Uniform Application of Federal Law" when the entire point of the law is to discriminate against same-sex couples. The law doesn't protect the "Uniform Application of Federal Law" when it says some legal marriages get federal protection while other don't. The Gill decision in fact said just that, that DOMA violated equal protection by denying same-sex couples rights without due process protection.

The third argument is about state sovereignty, but the entire point of Massachusetts was that DOMA violates state sovereignty. It's hard to see how the federal government, in not respecting marriages the states grant, is protecting the states' sovereignty.

I guess the Justice Department isn't really saying that those arguments are "reasonable," but that it's "reasonable" to argue that "Congress Could Reasonably Conclude" those arguments are true, but, really? Is that the standard the Justice Department uses across the board when determining which federal challenges to appeal? I doubt it.

But it's better than the arguments that Justice made to defend Smelt:

Next, the brief indicates that denying gay people our equal rights saves money[...]

The government goes on to say that DOMA reasonably protects other taxpayers from having to subsidize families like ours.[...]

The government again ignores our experiences when it argues that DOMA § 2 does not impair same-sex couples' right to move freely about our country as other families can[...]

As a matter of constitutional law, some of this brief does not even make sense:

DOMA does not discriminate against homosexuals in the provision of federal benefits.... Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

In other words, DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals.

I cannot overstate the pain that we feel as human beings and as families when we read an argument, presented in federal court, implying that our own marriages have no more constitutional standing than incestuous ones:

And the courts have widely held that certain marriages, performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, though valid in Italy under its laws, was not valid in Connecticut because it contravened public policy of th[at] state."

Its court filing steered clear of the justification of the law it had offered under President George W. Bush: that it promotes a traditional form of marriage best suited for procreating and raising children.

Instead, the Obama administration argued that the law preserves long-standing state authority to define marriage while saving taxpayer dollars.

With societal attitudes in flux, the department said, the law adopted "a cautious policy of federal neutrality towards a new form of marriage," allowing states to expand the traditional definition of wedlock but declining "to obligate federal taxpayers in other states to subsidize a form of marriage their own states do not recognize."

It's progress of a sort that Justice's defense of DOMA has gotten so anemic.