And recall the Golinski case, in which a married California woman (ironically an employee of the 9th circuit federal court) is suing for health benefits for her wife. The government's defense is from attorney Paul Clement, hired by the Republicans in Congress since the DoJ won't defend.
Not only won't the DoJ defend, however, they are actively supporting Golinski AND challenging DOMA, in a newly filed brief. From Chris Geidner:
DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional. ... In describing why heightened scrutiny applies to classifications based on sexual orientation, for example, the DOJ's lawyers -- in describing how "gays and lesbians have been subject to a history of discrimination" -- write, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals."...The brief is here.
Today's filing does more than acknowledge the federal government's role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement and President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It also details the role of the Federal Bureau of Investigation and the U.S. Postal Service in investigations seeking information about government employees suspected of such "perversion."
The brief goes on to describe anti-gay and anti-lesbian state and local discrimination, as well as private discrimination, before discussing other considerations made by courts when deciding what level of scrutiny should be applied to laws classifying groups -- including immutability; political powerlessness; and whether the classification bears any relation to, as the brief puts it, "legitimate policy objectives or ability to perform or contribute to society."
DOJ's lawyers conclude that heightened scrutiny applies and argue how, under that heightened scrutiny, Section 3 of DOMA should be found to be unconstitutional. ...
the brief concludes, "[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional."