Obama admin softens tone in gay-marriage suit - Josh Gerstein - POLITICO.com

Progress???? you decide

Obama admin softens tone in gay-marriage suit - Josh Gerstein - POLITICO.com

Following a furious outcry from the gay community, the Obama Administration is toning down its defense of the federal Defense of Marriage Act.

In a brief filed Monday morning in a lawsuit challenging the validitity of DOMA, the Justice Department put on the record that the administration favors repeal of the statute — a position that was omitted from a controversial legal filing the department made in June. DOJ also explicitly rejected arguments put forward by conservative groups that the importance of marriage for child rearing is a legitimate justification for DOMA's ban on federal recognition of same-sex unions.

"This Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal," the new brief from Justice Department lawyer Scott Simpson said. The brief then goes on to explain why DOJ is vigorously defending the measure it opposes.

"Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here," Simpson wrote. "This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and ensures that subsequent administrations will faithfully defend laws with which they may disagree on policy grounds," he added in a footnote.

On the child-rearing issue, Simpson wrote:

The government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman. ... Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. ... 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

Gay and lesbian activists and many liberals were deeply troubled by a brief the government filed in June which sought to defend DOMA by invoking cases barring uncle-niece marriage, first-cousin marriage, and underage marriage. Many in the gay community said the Obama administration was reinforcing suggestions by social conservatives that allowing gay marriage could lead to legalizing incest or pedophilia.

After the controversy erupted, one senior White House official, Lisa Brown, publicly expressed her view that the earlier brief contained arguments it should not have. However, the Justice Department never withdrew or modified the earlier brief.