Obama 'supports repeal' of same-sex marriage ban, lawyers say

The Obama administration sent mixed signals on same sex-marriage Monday, frustrating both sides of the contentious issue.

In a legal brief filed Monday, Justice Department lawyers asserted that the administration “does not support" an existing law that limits the federal definition of marriage to heterosexual couples, calling it "discriminatory" and saying that the administration "supports its repeal.”

Yet in that same brief, Justice Department lawyers ask a judge to throw out a lawsuit against that very same law, the Defense of Marriage Act (DOMA).

It is a sign that the Obama administration is feeling pressure from gay-rights groups, who say President Obama has not done enough for their cause since his inauguration. For its part, the administration appears to feel caught between its duty to defend a law that it sees as legitimate and a desire to overturn it.

In Monday's brief, lawyers said Congress acted reasonably when it passed the law, which not only defines marriage as being between a man and a women but also gives states the right to refuse to recognize gay marriages performed elsewhere.

“We appreciate that this brief represents progress, but it falls short of where it needs to be,” says Jennifer Pizer, senior counsel and Marriage Project Director for Lambda Legal, a gay and lesbian rights group.

Ms. Pizer and other gay rights advocates would like to see the administration back away from any defense of DOMA.

Mr. Obama said he would like to see DOMA overturned by Congress.

But he said in a statement Monday that the administration is obliged to defend lawsuits that challenge federal law.

Jurisprudence does not suggest that that is necessarily so, according to Lambda Legal. It cites eight cases since 1983 in which courts upheld an administration's right to not defend laws passed during previous administrations.

"This list is not to suggest that the administration is completely outside of mainstream thought in deciding to defend DOMA, but just to show that [the Department of Justice] certainly does not have an absolute duty to defend," Pizer writes in an e-mail

In Monday’s brief, the government contended that the plaintiffs in this case, a gay couple from California, have not shown that other states did not recognize their marriage or that they have been denied federal benefits.

The administration's approach to the case has angered many in the gay-rights community. In an earlier brief – in June – Justice Department lawyers asserted that DOMA did not amount to discrimination against gay couples.

One advocate of DOMA sees the new statement within Monday's brief as a placatory gesture with little legal significance. "The only thing that I see that has changed since June is that they are responding to the outcry that erupted from the advocates of same-sex marriage,” says Peter Sprigg, senior fellow for policy studies at the Family Research Council.

But that in itself is a disturbing development for organizations that oppose same-sex marriage. “It’s inconsistent with his stated beliefs that marriage should be a union between a man and a woman,” says Mr. Sprigg.

Lambda Legal's Pizer says she thinks Monday's brief has an importance beyond the political. Opponents of same-sex marriage, which is now legal in six states, have long charged that such unions are harmful to children. In Monday's papers, the government made a firm stance against such claims.

Government lawyers said the US “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing” and supported scientific evidence “that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.”

Pizer says she expects a bill to overturn DOMA to be introduced when Congress returns from summer recess. “There is just a different level of awareness today than 13 years ago when [DOMA] was enacted."

Moreover, she says, two other cases against DOMA are pending. Those, says Pizer, clearly state the harm faced by same-sex couples who are denied federal benefits because of their marriage status.

-----

Follow us on Twitter.