Last week I posted about the Justice Department's non-substantive defense of DOMA. Perhaps it's not the worst defense they could be providing (they could have just not appealed the ruling), it was legalistic and avoided most of the substantive arguments made by Bush's Justice Department, which went all-out against same-sex marriage by arguing that gays make bad parents.
But NOM thinks that the Justice Department is trying to throw the case:
NOM President Brian Brown accused Obama officials of purposefully throwing the case.
"The DOJ [Department of Justice] brief amounts to collusive litigation, failing to even offer to the court, much less vigorously defend, the reasons Congress laid out in the statute when it passed DOMA - especially responsible procreation," Brown said in a statement.
In its filing, the administration called DOMA "rational" because states have yet to adopt uniform rules on gay marriage.
"All the parties to this litigation want the court to strike down DOMA; this is clear from their behavior, no matter what President Obama and his politicized DOJ pretend to convey to the public," Brown added. "If Obama's DOJ had merely honestly refused to defend the law, the court would likely have permitted another party to intervene to defend the law."
"Obama's DOJ is trying to retain control so it can lose the case," Brown said.
NOM's is an organization that fund-raises from conservatives so it's in their financial interest to bash Obama. While I too find the defense pretty watered-down, Brown's argument that they're trying to "retain control" doesn't jive with reality.
The main reason I say that is because, unlike what Brian Brown says, the court would not "likely have permitted another party to intervene to defend the law" if the Justice Department chose not to appeal.
As we're seeing now with the Ninth Circuit's recent decision on Prop 8, the courts take issues of standing seriously and they're not just letting "another party" take over the defense of Prop 8 because the state of California decided not to repeal. This isn't a game and the court might not agree with Brown that the statute must be defended all the way to the Supreme Court, especially when many other challenges to federal law don't make it that high.
In fact, from the way I understand the Ninth Circuit's decision, the only reason they're even considering letting Religious Right orgs intervene and asking the California Supreme Court their opinion is because Prop 8 was a ballot initiative and the organizations that promoted it are saying they have a vested interest in protecting it. DOMA wasn't a ballot initiative, so there's no reason to believe that the court would allow a Religious Right organization to defend it in court when the US and several of its departments are the named defendants.
Also, I'd just throw out that the "responsible procreation" argument is pretty stupid, especially considering that the Massachusetts v. US decision centered on federalism, not the actual value of gays as married couples. I'm willing to leave the possibility that the lawyers at the DOJ actually do think that these are the best arguments to be making, since they may understand that the appeals judges might not be fundamentalist Protestants.