Make up you flipping mind, and, by the way, nice sentiments don’t mean much as you continue to screw with our relationships. Sigh — after that exhale, the positive overarching message in this new Obama DOJ reply brief (and it will not please the right either) the tone is much improved, but there’s that still-open question is about whether it HAS to defend the discriminatory law at all. Arguments have been made on both sides.

The Obama administration filed court papers Monday claiming a federal marriage law discriminates against gays, even as government lawyers continued to defend it.

Justice Department lawyers are seeking to dismiss a suit brought by a gay California couple challenging the 1996 Defense of Marriage Act. The administration’s response to the case has angered gay activists who see it as backtracking on campaign promises made by Barack Obama last year.

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.

…”DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage,” according to the filing by Assistant Attorney General Tony West.

What is left to evolve on this issue? The only thing evolving is marriage itself, which the fundies continually state hasn’t changed in 2000 years or some such BS. Good news also mentioned in the article is that the U.S. government will not defend using the blatantly ridiculous notions that procreation or raising children needs to be tied to government interest when it comes to marriage.

The White House statement:

THE WHITE HOUSE

Office of Media Affairs

______________________________________________________________________

For Immediate Release                                                                       August 17, 2009

Statement by the President on the Smelt v. United States Brief

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged.  This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress.  I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits.  While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.

The brief and statements from it are below the fold.

From the brief itself:

“With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. 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. And in this case, plaintiffs’ constitutional claims are unavailing. In their opposition brief, plaintiffs offer only a token response to the United States’ arguments on the merits. Indeed, they say nothing at all in response to the arguments concerning their “full faith and credit,” right to travel, right to privacy, First Amendment, or Ninth Amendment claims. On that basis alone, those claims should be dismissed.”

“Courts have held that challenges to DOMA are subject to rational basis review. Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. That there is now a debate taking place in this country about same-sex marriage does not make Congress’s belief in this regard any less rational. Basic federalism principles allowed Congress in 1996, and allow Congress now, to take this uniform approach based on a traditional  definition of marriage that all 50 states recognize while the states grapple with the emerging debate over same-sex marriage. Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

“Unlike the intervenors here, 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 (Doc. 42 at 8-9). 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. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons  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.”

Via Americablog: