Turning Over a New Brief

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Here's a flip-flop to welcome. In its original brief in a California lawsuit challenging the Defense of Marriage Act, the Obama Justice Department adduced a bevy of standard anti-gay-marriage arguments to defend DOMA's constitutionality-including the old standby that restricting marriage to opposite-sex couples isn't discriminatory because, after all, homosexuals can have opposite-sex marriages too.

Now, in its latest reply brief, the administration switches tack. It states unequivocally that the ban on gay marriage is a form of discrimination, as IGF contributor Dale Carpenter notes over at Volokh.com. And although DOMA passes the so-called rational basis test (ergo Congress had the power to enact it), it's not rational because banning gay marriage is rational (it isn't), but only because Congress is entitled, for the time being, to leave the issue to the states. There's no attempt to characterize DOMA as anything but discriminatory and unjustified.

Unlike some gay-marriage advocates, I believe that DOMA is, in fact, constitutional, in the sense that Congress has the power to enact it. I also believe, however, that setting up a federal definition of marriage at odds with those of (now) six states is bad policy. So, second time around, Obama gets it right.

And better late than never. Dale concludes:

While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA, and are understandably disturbed by the still-unabandoned arguments the DOJ made back in June, they should be delighted by the turn taken in this reply brief. It will serve the cause of SSM in state and especially federal courts for years to come.

One Comment for “Turning Over a New Brief”

  1. posted by Rich Givens on

    I would interested to hear, in your view, how DOMA does not conflict with the 14th Amendment to the US Constitution. My reading of the 14th Amendment leads me to believe that my rights to all the privileges of citizenship (of the several states)have been violated, and that my right to marry the person I love has been denied without due process, and that my state, New York, is denying me the equal protection of the law, in that I cannot enjoy the same rights, benefits, privileges and immunities available to opposite-sex couples by virtue of a simple marriage license. Please explain how I am wrong in these beliefs.

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