The Justice Department has been all over the map in terms of its arguments; at first, it continued the Bush-era line that gay marriage is potentially harmful. At this point, it's content to argue that because the federal government grants so many marriage rights, Justice has every right to determine who gets access to federal benefits. This change has led conservatives to accuse DOJ of deliberately watering down its arguments in the hope of essentially throwing away the case ... like a boxer who deliberately takes a fall. I find this too conspiratorial; Justice is trying to make the best argument it can make within the political constraints imposed by the President's political views, which include expansive access to federal benefits for gay people.
Generally, the equal protection case is seen as the strongest, because DOMA was signed into law by politicians who wanted to make sure that gay couples could not get access to federal benefits if their states legalized same-sex marriages or civil unions. Its intent was to deprive a class of people of rights afforded to another class.
I don't know if this case has the ingredients to create (or recognize) a federal right to gay couples; one presumes that, if this case doesn't reach the Supreme Court, the more compelling challenge could come from a couple who gets married in Washington, D.C., decides to move to Kentucky and demands that Kentucky recognize their marriage ... which Kentucky, citing DOMA, won't.
The prevailing assumption among many gay rights advocates is that there are four and a half votes on the Supreme Court for gay marriage, and the fifth vote will depend upon both the sway of public opinion, which absolutely influences how the justices work, and the quality and elegance of the underlying argument. I don't know if Gill gets them there. But it does, in a sense, advance the line of argument that holds that any sort of discrimination against gays is irrational. That's something the appeals court will take up, and something that the administration will have to figure out how to argue very carefully ...
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