Last week, the Department of Justice filed a legal brief in support of the Defense of Marriage Act, drawing the ire of LGBT activists already angered by what they see as President Obama dragging his feet on LGBT civil-rights issues.
The Obama administration filed a motion to dismiss a case brought by a gay couple married in California who are suing for federal marriage benefits.
Under DOMA, same-sex couples are not eligible to file joint taxes or afforded government-pension spousal benefits or other federal marriage rights.
Specifically, the LGBT community was angered by the tone of the brief, as well as the tone-deaf response the administration has had so far to its criticisms.
Instead of merely opposing the suit on a technicality, the administration defends DOMA as good law.
For instance, the brief compares same-sex marriage to marriage between cousins and underage marriage; states that DOMA ensures same-sex marriage doesn’t financially burden federal and state benefit programs; and that it is “reasonable and rational” for Congress to support “traditional” heterosexual marriage.
When activists called for an explanation — after all, President Obama had previously called DOMA “abhorrent” — a White House spokesperson said the Department of Justice must defend existing law.
Not so fast.
While the DOJ is charged with defending and enforcing laws on the books, it by no means is required to file briefs to support or oppose any particular case. Furthermore, presidential administrations have a history of filing briefs opposing laws they believe are unconstitutional.
Though activists are raking Obama over the coals for this, it’s likely he was not aware of the brief’s language, much less that it contradicted his stated positions on same-sex marriage and civil rights so strongly.
Despite the disturbing language of the brief and the administration’s defense of it, it may well be that this wasn’t the best case to go to the Supreme Court — and not the best timing either. After all, if Sonia Sotomayor is confirmed to replace Justice David Souter, the court majority still leans conservative. It might be better to wait for a more liberal court to hear a same-sex marriage-case than risk a bad ruling now.