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NOM nostalgic for '90s, for the discriminatory laws if not the Doc Martens

by Jeremy Hooper

NOM has never met a body of lawmakers whose pro-marriage equality law they will not overturn. But when it comes to Republican-controlled Congress of 1996 and their (unconstitutional) Defense of Marriage Act, the flawed procreation arguments were apparently infallible. And of course those dang activist judges and dirty progressives are being somehow out-of-line when further tests and reconsiderations are put into modern-day effect:

“The DOJ brief amounts to collusive litigation, failing to even offer to the court, much less vigorously defend, the reasons Congress laid out in the statute when it passed DOMA—especially responsible procreation. This is an attack not only on marriage, but on the prerogatives of Congress. The Executive branch should not attempt to exercise this kind of retroactive line-item veto over a bill passed by Congress,” said Brian Brown, president of NOM.

DOMA, which was passed by bipartisan majorities in 1996, defines marriage for the purpose of federal law as the union of one man and one woman. In the statute, Congress laid out four reasons justifying this definition of marriage including “responsible procreation.” Courts in New York, Maryland and elsewhere have accepted this reason as the rational basis for marriage’s definition. The DOJ brief formally defending DOMA, pointedly and explicitly repudiates the idea that responsible procreation is a purpose of DOMA, significantly undercutting the efforts of the Congress.

“All the parties to this litigation want the court to strike down DOMA; this is clear from their behavior, no matter what President Obama and his politicized DOJ pretend to convey to the public,” said Brown, “If Obama’s DOJ had merely honestly refused to defend the law, the court would likely have permitted another party to intervene to defend the law. Obama’s DOJ is trying to retain control so it can lose this case.”

NOM Responds to Obama Administration's Failure to Defend DOMA and Congress [NOM]

Well look, we're not going to really defend the DOJ's actions here. If the administration, through its reasoned read, sees DOMA as unconstitutional, then it's certainly odd that they have to defend it. It's annoying that we even have to unpack this cognitive dissonance.

But the bottom line here in terms of Brian and NOM is not the DOJ's defense or lack thereof, but the merits of this flawed law. Once again we see Brian trying to hold on to the ridiculous procreation basis, an argument that might have flown back when this nation's marriage equality conversation was in its widely unrealized infancy, but one that fails every fair test put upon it here in 2011 America (where gays in five states and D.C. are marrying without incident). Brian and NOM keep working this procreation argument because they know its the best "logic" they have, playing to the same sort of kid-based fears that have reduced this national dialogue in ways immeasurable. But fortunately for us, this "best argument" is still quite bad. At some point NOM staffers are going to have to come up with something, anything else if they want to be seen as a stable of political tiger rather than one of political dodos.

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