Thursday, August 20, 2009

Department of Justice Files Another DOMA Brief

Earlier this week, the Obama Department of Justice (DOJ) filed another brief in the case that is challenging the constitutionality of the Defense of Marriage Act (DOMA), the law that prohibits the federal government from recognizing same-sex marriages for purposes of federal benefits, protections, and privileges. The brief, while still supporting DOMA, takes a different tone than the brief the DOJ filed back in June.

For instance, of the Obama Administration has stated:

"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."

Well, it's definitely a step in the right direction. Unlike the June brief, which argued that DOMA didn't discriminate against gay men and lesbians because gay men and lesbians were just as free as anybody else to marry (people of the opposite sex of course!), the Obama Administration now acknowledges that DOMA is indeed discriminatory. Furthermore, the brief explicitly rejects the asinine "responsible procreation" argument, noting that the government does not have enough of an interest in encouraging procreation to be able to limit marriage to heterosexual couples, especially given the fact that heterosexual couples unable or unwilling to procreate are allowed to marry.

Moving on, I'm not going to delve into the brief's specific constitutional arguments surrounding DOMA. Reasonable arguments can be and often are made both for and against the constitutionality of the law. Ultimately, the outcome will depend moreso on the persuasiveness of the arguments presented working in combination with the arbiter's ideology, politics, and beliefs regarding how the constitution should be interpreted. Given that there are usually enough "appropriate rules and precedents" to render an opinion on either side of an issue that accords with "tradition and professional expertise," it is farcical to believe, as many people nonetheless do, that judges engage in Objective Truthfinding by merely Applying the Law to the Case At Hand.

Instead, I'm going to say this. If heterosexual people don't want their tax dollars going towards providing LGBT families the rights, privileges, and benefits that the marital status conveys, at least give us a tax break for subsidizing their relationships, families, promiscuities, and social security benefits.

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