By Stephanie Condon -
|James Grady and Mike Picardi cheer the news|
as advocates for gay marriage rally on
Capitol Hill in Salt Lake City after a federal
court judge overturned California's same-sex
Mr. Obama says he is opposed to the Defense of Marriage Act (DOMA), which prohibits federal recognition of same-sex marriages, and the Justice Department has explicitly stated that the president maintains that position. However, after a district judge ruled in July that DOMA is unconstitutional, the Justice Department announced it would appeal the ruling because it has an obligation to defend all federal laws.
Gay rights advocates take issue with that logic.
"The Administration claims that it has a duty to defend the laws that are on the books, despite the President publicly decrying DOMA as discriminatory. We disagree," the Human Rights Campaign (HRC) said in a statement. "And at the very least, the Justice Department can and should acknowledge that the law is unconstitutional."
In response to the Justice Department's brief, the HRC last night issued an alert to its 1.3 million supporters urging them to lobby the president in support of same-sex marriage.
"Now is the time for the President to stand firmly against bigotry and discrimination in our laws and for the full inclusion of our community in marriage," the group said in its statement.
In its brief, the Justice Department argues that the federal government should maintain its current laws on marriage while the states experiment with their own marriage laws.
DOMA, the Justice Department argues, "is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states."
The appeal explicitly addresses Mr. Obama's opposition to the law.
"Indeed, the President supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages," the Justice Department says. "But a consensus behind that approach has not yet developed, and Congress could properly take notice of the divergent views regarding same-sex marriage across the states."
Talking Points Memo reports that the Justice Department worked with its Civil Rights Division's liaison to the gay, lesbian, bisexual and transgender community to make sure its DOMA briefings did not advance arguments that the LGBT community would find particularly offensive.
Still, the gay rights community is expressing disappointment.
"There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens," Equality Matters chief Richard Socarides told Politico. "And that is unacceptable."
Americablog writer John Aravosis, who focuses gay rights issues, points out that Mr. Obama supported gay marriage in the 1990s. With that in mind, he writes, "This ongoing defense of bigotry and discrimination is unacceptable. It comes across as playing politics with people's civil rights. And it's wrong."
The gay rights community fought a similar battle with the Obama administration over the military's "don't ask, don't tell" policy, which the administration also defended in court. The Justice Department also argued in that case that it had an obligation to defend laws even when the president opposed them. Mr. Obama pushed for letting Congress deal with the matter over the courts.
The Justice Department's brief acknowledges that views on gay marriage are "evolving."
"When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving," the brief says. "Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society."
President Obama recently said his own personal views on the issue were still evolving, though he currently thinks that same-sex couples should be eligible for civil unions, not marriage.