Are DOMA Supporters Kidding Themselves?

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"With the House [of Representatives now] intervening" in the constitutional defense of the Defense of Marriage Act, same-sex marriage opponent Brian Brown said last week, "we will finally get lawyers in that courtroom who are trying to win this case..." Bryan Fischer, another conservative activist, echoed that sentiment. He told The New York Times: "We think the Justice Department was making a pretty tepid and halfhearted defense. This is such an important public policy law it needs to be defended by someone who believes it is good."

It's easy to understand why, as a political matter, supporters of the Marriage Act like Brown and Fischer would seek to publicly bash Justice Department attorneys for the Act's recent struggles in court (and its subsequent abandonment by the Obama Administration). It's a charge that plays well to the base of supporters who want to continue bans on same-sex marriage (and federal benefits for same-sex couples). And it is an easy and efficient way to create the (false) impression that it's the White House, and not the judiciary, which has been leading the parade toward marriage equality in America.

You can also understand the tactic as a practical matter. It is what losing litigants often do when they can't change the facts of their case or the judge's current view of it. They hire new lawyers and then loudly blame their old ones for failing to convince the arbiter of the righteousness of the cause. It's always easier to blame the messenger -- especially when the messenger is a government attorney who can't answer back. But House Republicans and other same-sex marriage foes are kidding themselves if they truly believe that the DOMA is on the ropes now because Justice Department attorneys dropped the ball. That is so wrong as to be delusional.

Don't be similarly fooled. The Marriage Act is in legal jeopardy today because its primary legal justifications were wiped out -- I mean, destroyed -- by U.S. District Judge Joseph Tauro, the venerated Nixon appointee sitting in senior status in Massachusetts. His two companion rulings last July weren't the result of poor lawyering by the feds. They were the result of an avalanche of compelling evidence presented by same-sex marriage opponents. They were the result of inherent and evident conflicts between the purpose of the federal statute, the purpose of same-sex marriage laws in states like Massachusetts, and the Constitution.

In one case, Judge Tauro that the federal government had no authority to regulate marriage, an area traditionally left to the states. In the other, Judge Tauro ruled that the DOMA violates the equal protection rights of same-sex couples who are lawfully married under their own state's laws. The Justice Department's arguments in those cases failed because they were weak to begin with -- not because they were weakly presented. There are some facts, after all, which even good government lawyers cannot create. And, just you watch, those arguments won't suddenly become stronger now just because new courtroom tribunes are making them. The federal judiciary's built-in bullshit detector won't allow it.   For example, Justice Department lawyers are surely not to blame for the fact that the Marriage Act, by Judge Tauro's count, implicates 1,138 other "federal laws tied to benefits, protections, rights or responsibilities to marital status" each one representing a way in which lawfully-married couples in five states and the District of Columbia are deprived of the same rights (and responsibilities) as their opposite-sex counterparts. Government attorneys surely didn't make up the fact that state veterans cemeteries which receive federal funding are prohibited by the Marriage Act from allowing same-sex spouses to be buried there.

There are many differences between the fight over the Marriage Act and the fight over California's Proposition 8, the anti-gay marriage initiated passed by voters in 2008. But one remarkably similarity is the extent in which same-sex marriage opponents were routed at the trial court level, where the evidence comes in. The language of Judge Tauro's equal protection ruling tells you that he found the rationale supporting the Marriage Act woefully short of sense and sensibility. The same goes for U.S. District Judge Vaughn Walker, another Republican appointee, in his Prop 8 ruling last August. The Walker's ruling reflected the fact that he had just presided over a remarkably one-sided test of evidence in favor of same-sex marriage proponents. Is that a coincidence? Or  reflective of a general dearth of compelling, non-discriminatory rationale supporting  same-sex marriage bans?

The new government lawyers who will now march the Congress' colors into federal court will be commanded by the so-called Bipartisan Legal Advisory Group, a five member panel of House leaders who now will manage the pending litigation. The group will try to get Judge Tauro's decision overturned by the 1st U.S. Circuit Court of Appeals and to stymie other challenges to the Marriage Act now underway at the trial court level in New York and Connecticut. Those lawyers may or may not think the Marriage Act "is good," as Fischer hopes, but it won't matter either way. The Act will stand or fall now for what it is, and what it represents, and not for who stands up in court to defend it.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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