I guess this is a step in the right direction. I don't want to fail to praise the administration for doing better, but to some degree the only reason this is "good" is because of how "bad" they did on the previous brief. In the end, they're still defending a discriminatory law that the president himself has called "abhorrent." The fact that they're doing it more tactfully is, I suppose, nice - and they are no longer using language that undercuts us on a variety of other civil rights, so that's good - but again, we're praising them for no longer doing things that they shouldn't have done in the first place. And in the end, they're still defending discrimination.
Reply Brief
We had to find out via a friend on the outside because, apparently, even sharing good news is considered a bad thing by this administration. In any case, while they still are opposing a lawsuit to overturn DOMA, the administration's language has taken a 180 since the disastrous brief in which they compared gay marriage to incest and pedophilia. In this new brief, things are decidedly better:
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.2Still a bit of a bs answer - they don't have to defend a law that they think unconstitutional, but they choose to. Still, the language is markedly improved.
And they still stand by some of their discriminatory arguments by referring to the offending brief without quoting it directly:
Plaintiffs' equal protection and due process claims raise several issues, all of which were addressed in the United States' motion to dismiss. As established in the government's opening memorandum, federal courts have unanimously upheld the constitutionality of DOMA.5 Plaintiffs' only response to the government's arguments in favor of dismissal is to assert, without elaboration, that "same gender marriage is a . . . fundamental right" such that DOMA is subject to "heightened scrutiny," and to imply that DOMA constitutes "gender discrimination" (Doc. 40 at 4, 5). The United States refuted these assertions in its opening memorandum.I'm also not sure it's appropriate for the Obama administration to bet yet again arguing that it's rational for a court to uphold DOMA's constitutionality:
Courts have held that challenges to DOMA are subject to rational basis review.6 Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. That there is now a debate taking place in this country about same-sex marriage does not make Congress's belief in this regard any less rational.Then there's this excellent paragraph:
Unlike the intervenors here, the government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.7 Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because "the sterile and the elderly are allowed to marry." For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality.
