Obama Administration Begins to Change Its Tune on DOMA

The Obama administration came out today and said that DOMA is wrong and is discriminatory.  The Department of Justice is, however, still defending the law in court, saying that the DOJ has to defend laws it doesn’t agree with.

President Obama made clear Monday that he favors the repeal of the Defense of Marriage Act, and intends to ask Congress to repeal the 13-year-old law that denies benefits to domestic partners of federal employees and allows states to reject same-sex marriages performed in other states.

Obama has long opposed the law, which he has called discriminatory. But his Justice Department has angered the gay community, which favored Obama by a wide margin in last year’s election, by defending the law in court. The administration has said it is standard practice for the Justice Department to do so, even for laws that it does not agree with.

The Justice Department did so again Monday in its response in Smelt v. United States, a case before a U.S. District Court in California. But, for the first time, the filing itself made clear that the administration “does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

Some people have said that the DOJ doesn’t have to defend a law it doesn’t agree with.  I’m not so sure about that.  It seems to me that laws that have been duly enacted have to be enforced.  (But as I’ve said over and over, I’m not a lawyer and if I’m wrong about this, please correct me.)  The tone that’s taken, though, when defending a law is another matter entirely.  The Obama DOJ’s previous defense of DOMA was a slap in the face. 

The brief today strikes an entirely different tone.  This seems to me to be a repudiation of the earlier DOMA brief (linked above).  I still haven’t seen the president call on Nancy Pelosi and Harry Reid to get a bill repealing DOMA (and DADT) passed, though.  So this is welcome, but it seems a bit weak at this point.

And as for what this brief means, see Law Dork:

For those, reasonably, asking if this brief in any way “takes back” the earlier, problematic arguments made in the previous DOJ Smelt brief, it does not.  But, what it does do is put that brief in context of the Administration’s opposition to the policy aims of DOMA.

In order to get a full picture of the Administration’s changed approach on defending DOMA, we will need to wait until mid-September, when the Justice Department files its Motion to Dismiss in Gill v. Office of Personnel Management et al., the Massachusetts GLAD case.  I previously discussed the Amended Complaint filed in the case by GLAD earlier this month.  The government’s response to the Complaint is due by Sept. 18.]

So, we wait on the legal front, for this brief.  And we continue to wait on the legislative front for this administration to get off the dime and actually do something for the gay community.