DOMA: Defending the Indefensible

DOMA needs a defense for the same reason the Yankees need the Red Sox, or Duke needs UNC, or Itchy needs Scratchy. Good needs evil, right needs wrong. That may sound too lyrical to be true, but it is true in court. We want two sides arguing their points of law and fact to a judge or jury, and we want the courts' ultimate decisions to be based on a weighing of all the arguments offered. Such a decision would be beyond reproach and immune to charges of legal error.

While it is true that the neither the House nor Senate must intervene to defend DOMA and while it is true that when a circuit court of appeals or the Supreme Court hears a DOMA case, those courts would likely invite outside parties to file amicus briefs (friend of the court briefs) to take up the defense of the statute, I would rather pro-DOMA conservatives have their say from the beginning, through the official mouthpiece of the House and its legal office, and in a position to mount a proper defense to an indefensible law.

This has various advantages. As a matter of public opinion, it allows pro-equality forces to highlight the irrationality of the Republicans' DOMA defense — as we saw when ProtectMarriage dot com mounted a terrible defense of Prop 8 in Perry v. Schwarzenegger — and to expose some of the Republicans' budget-busting rhetoric for the pretext that it is. As a legal matter, it ensures that every judge, at every stage of the DOMA cases, has two parties making the best arguments they can, objecting forcefully, engaging in motion practice and offering evidence. A DOMA defense makes a final decision declaring DOMA unconstitutional more satisfying and immune from the allegation that a lower court had insufficient evidence before it when making its decision.

Let the House defend DOMA. In fact, they should hire the best lawyers. Bring it…