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Obama's Justice Department in knots over gay marriage case

August 17, 2009 | 10:52 am

Two women kiss during the annual Gay Pride in Paris, Saturday June 27, 2009 where thousands of lesbians, gays, bisexuals and transgenders marched to demand equal rights

The Obama Justice Department acknowledged today for the first time that laws meant to preclude gay marriage are, simply put, wrong.

In a brief filed this morning in the case of a gay couple suing the federal government for the 1996 Defense of Marriage Act that prohibits gay marriage, the Justice Department said:

This administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.

That is a departure, for sure, from the George W. Bush administration but the bottom line is the same. Because DOMA is federal law, the Justice Department is sworn to defend it. So, in the second half of its brief this morning, the government lawyers said:

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.

When word first leaked in June that DOJ was planning to defend DOMA, gay rights activists were furious. Amid the outcry, the Justice Department has now toned down its defense, publicly noting its view that the law discriminates against gay Americans.

Still, the White House is bracing for political brush back from Democrats -- such as California gubernatorial candidate and San Francisco Mayor Gavin Newsom -- who might argue the Justice Department stance is too wimpy. So President Obama himself issued a statement this morning, saying:

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.

-- Johanna Neuman

Photo: Two women kiss during annual Gay Pride activities in Paris in June. Credit: Associated Press

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