What DOJ Thinks of the Defense of Marriage Act Doesn't Matter Much

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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.

 "This court is soundly convinced," Judge Tauro wrote last summer, "that the government's proffered rationales . . . are without 'footing in the realities of the subject addressed by [DOMA].' And 'when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,' this court finds that DOMA lacks a rational basis to support it." And that was one of the nicer things the venerable jurist said about the constitutionality of the Clinton-era statute that serves to deny federal benefits to same-sex spouses across the country.

The 1st Circuit -- otherwise known as Red Sox Nation -- comprises much of the New England region of the country (and Puerto Rico). The reason it has little of the liberal reputation of the 9th Circuit, or the conservative reputation of the 4th Circuit, or the brawny reputation of the 2nd Circuit, is because it is almost as rugged and meandering and independent as those good folks in Dixville Notch, New Hampshire, who vote at midnight for president every four years. Almost. And the good news for gay rights advocates, which is the bad news for DOMA fans, is that the Justice Department in its latest court papers is making many of the same arguments that Judge Tauro rejected when the case was before him.

Here, for example, is one passage in the Administration's brief. Federal lawyers want to reassure the appellate court that there is no "animus" in the DOMA and that there is perfectly rational reason for its enactment. They wrote:  

"DOMA, which implicates over 1000 federal laws, reflects Congress reasonable response to this sill-evolving debate among the states regarding same-sex marriage. The Constitution permitted Congress to enact DOMA as a means to preserve the status quo, ensure consistency in the distribution of federal marriage-based benefits, and respect policy developments in the states without implicating other states or the United States, pending the resolution of the debate taking place in the states over whether to permit same-sex marriage."

Pending the resolution of the debate? Does anyone -- no matter which of the same-sex marriage line they fall upon -- believe that there is going to be a "resolution of the debate" over the legalization of same-sex marriage without a decision, one way or the other, from the United States Supreme Court? And even then ... I'm not so sure that's a rational argument to make as 2011 begins. If anything, the debate has grown in the 15 years since the DOMA was passed -- the pitched battle over California's Proposition 8 is just the most publicized example -- with no end in sight. And, anyway, the DOMA is not, as the feds suggest, a neutral law designed to bide time until the states sort things out; it takes a definitive side in the "debate taking place in the states" and that side, Judge Tauro ruled, is unconstitutionally shaky.

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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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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