WASHINGTON (BP) -- When President Obama told the Justice Department in February 2011 to stop defending a key federal law that defines marriage as between a man and a woman, it was widely assumed the department would take a neutral position and sit on the sidelines.
But with little fanfare since that announcement, the Justice Department has actually started filing legal briefs arguing that the law in question -- the Defense of Marriage Act (DOMA) -- should be overturned because, the department says, it is unconstitutional.
It is a remarkable turn of events for a Justice Department that just 15 months ago was defending the law in court. Many of those same attorneys who were defending it now are urging courts to strike it down.
"Everybody thought they were taking a neutral stance. They did not indicate they were going to actively attack its constitutionality," Dale Schowengerdt, an attorney with the Alliance Defense Fund, told Baptist Press. ADF, a Christian legal group, has worked to defend the law.
It is no small legal matter. Passed by bipartisan support in 1996 and signed into law by President Clinton, the Defense of Marriage Act prevents the federal government from recognizing gay "marriage" and also gives states protection from being forced to recognize another state's gay "marriages." In the 16 years since it became law, 30 states -- North Carolina being the latest -- have passed constitutional amendments defining marriage as between a man and a woman. Another dozen or so states have passed similar statutes.
Gay groups view DOMA as one of the remaining obstacles to legalizing gay "marriage" nationwide, and they now have an ally in the Justice Department.
Technically, the Justice Department is involved only in lawsuits that challenge Section 3 of DOMA -- the section that prevents the federal government from recognizing gay "marriage." But the legal arguments the Justice Department is making easily could be applied to all of DOMA, including the section that protects states, Schowengerdt said. President Obama, meanwhile, is supporting a bill in Congress that would overturn all of DOMA.
As an example of the Justice Department's new stance, it argued in a December 2011 brief at a U.S. District Court in Pennsylvania that passage of the Defense of Marriage Act "was motivated in significant part by animus towards gays and lesbians" -- i.e., prejudice and hostility toward homosexuals. The brief asserted that gays and lesbians have suffered discrimination throughout history and -- like minorities -- "exhibit obvious, immutable, or distinguishing characteristics." Significantly, the Justice Department also said DOMA should be reviewed under "heightened scrutiny" -- a standard normally applied to laws that impact, for instance, race and sex.
Supporters of DOMA argue that the law should be subject to what is called "rational basis," which holds that as long as Congress had a rational reason for passing the law, it should stand. Under rational basis, the court begins with a presumption that the law is valid. Generally, under "heightened scrutiny," the opposite is true.
The Justice Department's argument could lead to a landmark ruling: Every appeals court that has considered the issue has declined to apply heightened scrutiny to sexual orientation, Schowengerdt said. Under heightened scrutiny, every law nationwide defining marriage in the traditional sense could be reversed.
The Justice Department legal briefs even have rejected the notion that children need moms and dads -- an issue that Congress cited in 1996 as a reason for passage of the Defense of Marriage Act.
"There is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing," the Justice Department attorneys wrote.
DOMA, the Justice Department argued, "unconstitutionally discriminates."
The Justice Department's position on the law, Schowengerdt said, is important because courts weigh heavily what the department says.
"When it comes to defending a law that Congress has passed, that usually falls to the Department of Justice, and the courts rely on the Department of Justice to give those laws their best defense," he said. "That's how the system works. A system has to have advocates on both sides."
The "silver lining," Schowengerdt said, is that attorneys for the House of Representatives are doing a "fantastic" job defending the law. Republican leaders in the House last year voted to start defending the law after the Justice Department stopped defending it. A former solicitor general, Paul Clement, is leading the House team.
Last year in a brief defending DOMA, Clement's team quoted research stating that "the optimal situation for the child is to have both an involved mother and an involved father."
"[T]he experience of a child raised by a man and a woman may differ from that of a child raised by same-sex caregivers," the House brief said. "The federal courts that have upheld DOMA all have recognized that encouraging child-rearing by a married mother and father is a legitimate governmental interest, and that DOMA furthers that interest. ... Congress rationally could conclude that each child will benefit from having a role model of his or her own sex as a parent, and from being exposed within the family to how that parent relates to an adult of the opposite sex."
The DOMA cases are different from the high-profile California Proposition 8 case, although each pertains to the issue of gay "marriage." It is not clear which will be appealed first to the Supreme Court. The First Circuit Court of Appeals heard oral arguments in a DOMA case in April but has yet to issue an opinion; the lower court had struck down Section 3 of DOMA. A panel for the Ninth Circuit Court of Appeals struck down Prop 8 in February, although supporters are appealing that decision to the full circuit for an "en banc" review. The Justice Department is not involved in the Prop 8 case. Prop 8 is a California constitutional amendment that defines marriage as between a man and a woman.
Michael Foust is associate editor of Baptist Press.
c. 2012 Baptist Press. Used with permission.
Publication date: May 17, 2012