A New York Times editorial from yesterday chides the Obama administration for allowing the Department of Justice to defend the Federal Defense of Marriage Act. The Times says that a brief arguing that this current law is constitutional is “disturbing.” The crux of the argument is that it is “hurtful” for the DOJ to say DOMA is consistent with the Constitution.
The Times and the activist groups it is aligning with prefer a frankly political approach to the defense of DOMA. Activist groups have made no secret that they do not want the case in which the DOJ brief has been filed to go forward because they fear that they will lose and the loss will create precedent they don’t want. This is part of a long-term strategy to get a national imposition of same-sex marriage but only when the time is considered ripe for doing so. Their objection to the current brief is only that it says DOMA is good law.
At the same time, for whatever reason, the administration can’t, or won’t, seek a straightforward repeal of DOMA. Given the heavy margins in its favor in 1996 (it was signed by President Clinton), and the continued vitality of support for the traditional understanding of marriage, it is probably wise to let the law alone. This does not satisfy the demands (or the feelings) of the marriage-redefinition crowd. They would like the administration to undermine DOMA in court (as the attorney general of California tried to do with Proposition 22 and Proposition 8). This also is part of the strategy.
This requires ignoring the lack of any constitutional provision or court precedent for the redefinition of marriage. This lack won’t serve as an obstacle to the redefinition effort, though, since that effort only responds to one criterion — whether the ideological goal is advanced. Hopefully, the DOJ will continue to respond to a more important factor — the rule of law.