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DOJ and DOMA: Could they DO MO' for 'MOs?

by Jeremy Hooper

If a majority of voters approve an unjust law that a certain administration admittedly finds discriminatory, does that administration have to defend majority tyranny at the expense of minority liberties? The Obama administration still thinks so:

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

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.
"The administration believes the Defense of Marriage Act is discriminatory and should be repealed," said Justice Department spokeswoman Tracy Schmaler, because it prevents equal rights and benefits.

The department is obligated "to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration's policy preferences," Schmaler added.

Obama administration says marriage law unfair [AP via SF Gate]

On one hand, it's good to keep getting them on record, speaking to the flawed nature of this hurtful law. But on the other: This fosters endless debate for those who think that this administration can take a principled stand against a constitutionally errant act like this one. The word "untenable" is often tossed around to justify the DOJ's supposedly forced hand here, and references to Bush era missteps are used to explain why this administration must rise to a different standard. But at the same time, some within the pro-equality side can't help but throw around a few, less polite terms to describe what can quite understandably seem like an incongruous face-smack.

All we can do is keep the pressure on the administration and congress, ensuring that either our voices will be heard or our votes will be withheld. And we must question every last justification until the only acceptable justice, the principled slaying of this disgusting beast of a law, is the order of the day.

**UPDATE: The White House emailed us this statement:

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.


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Your thoughts

I think having the DOJ defend the law is our best way to get it overturned in court. The DOJ can do a lackluster job and present a bad case - which they may just do. You know if they didn't defend it, The Alliance Defense Fund or Pacific Justice Institute (some anti-gay CA group) would jump in to defend it more rigorously. As it is, ADF is trying to get in the current lawsuit because it thinks the DOJ won't defend the law very well.

Posted by: stojef | Aug 18, 2009 2:56:22 PM

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