Back in October, the Department of Justice announced that it was going to be appealing two rulings, in Gill v. Office of Personnel Management and Commonwealth of Massachusetts vs. Department of Health and Human Services, in which Judge Joseph Tauro of Boston ruled that the Defense of Marriage Act (DOMA) violates the Fifth Amendment and impedes the state of Massachusetts's ability to define marriage.
Late yesterday, they filed briefs in support of that appeal.
While citing an "ongoing" dialogue between states on the issue of marriage, the brief offers three reasons why DOMA is still valid.
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.
Politico reports on the criticisms from LGBT groups yesterday:
The half-heartedness of that defense didn't offer much solace to activists who — despite the Justice Department's traditional role defending federal laws — are demanding that Obama return to the full support for same-sex marriage that he advocated in the 1990s.
"There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens," said Equality Matters chief Richard Socarides in an email. "And that is unacceptable."
"The Administration claims that it has a duty to defend the laws that are on the books. We simply do not agree. At the very least, the Justice Department can and should acknowledge that the law is unconstitutional," Human Rights Campaign president Joe Solmonese said in an email to the group's members, signaling that even the relatively conciliatory group will take a more confrontational tone on marriage. "All families deserve the recognition and respect of their government. It's time for President Obama to state his support for full, equal marriage. And we want your help in telling him that it's time."
Our legal expert, Ari Ezra Waldman, will have an analysis of the developments up a bit later….
I've posted the brief, AFTER THE JUMP…
