On Pressure And The Obama Administration
It's faint praise to say that the Obama Justice Department surpassed expectations by not comparing same-sex marriage to pedophilia and incest anymore, but that's basically what John Aravosis is offering with respect to the Administration's latest brief on DOMA. As Aravosis says, in the end, they're still defending discrimination, but they are doing it with a recognition that the President does not support the law and wants it repealed. There's a fair question over whether the DoJ could just not defend the law, but it would conjure up the Bush era, when they simply ignored whatever laws they felt like ignoring.
With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.
The larger point here is one about pressure. The Obama DoJ made a huge mistake with their initial, hostile brief on DOMA, and it enraged the LGBT community, who promptly reacted in very strong terms. Since then Obama has been trying at various points to make things better, going further and further each time. At Netroots Nation, Valerie Jarrett said the President is committed to repealing DADT and DOMA, without any weasel words. The Administration made a bad decision, got a huge amount of pushback, and responded in favorable ways. That doesn't mean gay rights advocates will end their pressure, nor should they until the actual repeals are signed and gay rights are advanced. It means that they've learned how pressure works with this Administration. We could all learn from that.