On Monday, the DoJ released a reply brief to Smelt. Pam' s House Blend has the backstory on this AP report:
The Obama administration filed court papers Monday claiming a federal marriage law discriminates against gays, even as government lawyers continued to defend it......Okay, so they are still defending it....but they now have put in writing that they believe DOMA is wrong.
In court papers, the administration said it supports repeal of the law. Yet the same filing says the Justice Department will defend the statute in this case because a reasonable argument can be made that the law is constitutional.....
"The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality," lawyers argued in the filing.
I can't help believe that this is an improvement. I expect the usual suspects will be up in arms about any defense, but it's typical of the Obama approach of softly softly. The law needs to be defended on principle, even if they believe it should be repealed through appropriate channels.
From the brief itself to Obama’s statement and in light of the other changes being advanced by the Administration, I continue to believe that the original DOJ Smelt filing was made without the full appreciation (or knowledge) by higher-ups. I do think that the uproar following its filing has changed the approach of the Administration, and, for that, the debate was worthwhile. This filing and statement show an awareness of and sensitivity to that impact, while maintaining a clear principle to defend a law that repeatedly has been found to be constitutional.Meanwhile, there's another case against DOMA making its way through the courts, Gill which is generally viewed as a stronger one. It challenges the distinctly different treatment of married couples in MA in dealing with federal agencies. Because these couples are being actively discriminated against now (as legally married) this is viewed as a very strong argument against DOMA, or at least against the part of it that prevents Federal Recognition of legal same sex marriage.
As highlighted by LawDork, the plaintiffs have amended their complaint with some more powerful language, particularly around the tax inequities. Here are some choice quotes from the amended brief.
Although each of the plaintiffs is similarly situated to all other married or widowed persons in the Commonwealth of Massachusetts, DOMA, 1 U.S.C. § 7, requires the plaintiffs to deny the existence of their families and the nature of their familial relationships. DOMA, 1 U.S.C. § 7, thereby causes confusion and complexity in a culture where people are expected to have one familial and marital status, whether dealing with private, state or federal entities.
The federal government’s refusal to recognize the plaintiffs’ marriages does not nurture, improve, stabilize or enhance the marriages of other married couples. Nor would the federal government’s recognition of plaintiffs’ marriages degrade, destabilize or have any other deleterious effect on the marriages of other married couples.
Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex. Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.
I wonder whether the DoJ "tipped its hand" in the Smelt case enough to allow more targeted arguments here. And what difference the new filing will make.
So to sum up: THREE cases underway in Federal Court. TWO anti-DOMA cases (Smelt, and Gill) plus ONE anti-Prop8 case also in federal court (Perry v. Schwarzenegger). The DOMA cases are defended by the DoJ as they apply to existing federal law. The Prop8 case is against the state of California but under Federal Constitutional grounds (the previous challenge was to the State Supreme Court under California constitution issues). It is defended by the pro-H8 folks, since the State of California agrees that Prop8 offends the equal protection clause of the US Constitution.