The DOJ's Defense Of DOMA

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Andrew Cohen parses it:

If it's any consolation at all to the people now wringing their hands in anger and frustration over the Obama Administration's more-than-tepid legal defense of the Defense of Marriage Act, the judges of the 1st U.S. Circuit Court of Appeals, to whom the Justice Department addressed its latest brief, aren't likely to pay much attention to it anyway. Far more compelling and relevant to their analysis will be the lower court ruling that is the subject of the appeal. It was written by veteran federal judge Joseph L. Tauro, a Nixon appointee and a living legend in Massachusetts law, who set forth in his order a devastating assault on the federal statute that defines marriage as being only between a man and a woman.

His bottom line:

The 1st Circuit's decision, when it comes later this year, will be merely a signpost along the DOMA's road to the Supreme Court. No matter what it says, it will be appealed by the losing side either to the full circuit panel, or to the Justices, or both. Yes, a federal appellate decision affirming Judge Tauro's ruling, in whole or in part, would be good news for same-sex marriage proponents. But such a decision surely won't be binding on Justice Anthony M. Kennedy, the Court's vital swing vote, who almost certainly will decide this issue if and when it comes before him. So my humble advice to DOMA opponents? Don't use up all of your disappointment now. You may need it later.

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