What to Make of the DOJ's Mixed Messages on DOMA?


This news (via CitizenLink) became public a little over a week ago but still remains relevant:

In a move that caught same-sex marriage advocates by surprise, the U.S. Trustee for the Bankruptcy Court, a division of the Department of Justice (DOJ), has filed notice that it intends to appeal a June 13 federal bankruptcy court ruling striking down the federal Defense of Marriage Act (DOMA) as unconstitutional.

The Obama administration and the DOJ had announced Feb. 23 that they viewed DOMA as unconstitutional and would no longer defend it. The U.S. House of Representatives retained former Solicitor General Paul Clement as its attorney to defend the 1996 law.

A legal expert sent this note to us, explaining a bit more what is happening:

The DOJ filing means that the case remains alive. If they had not appealed than DOMA would have been unconstitutional in bankruptcy cases in the area around Los Angeles and nowhere else. If the debtors succeed in getting a court to agree with them on appeal, the effect of that decision on DOMA would be much broader (i.e. in all states in the 9th Circuit).

It seems like there are two possibilities that would explain DOJ’s actions:

1. They learned their lesson from the criticism of their previous decisions and are allowing the case to stay alive so that Congress can intervene and defend DOMA.
2. They still want to throw the case and so are appealing but will not put up a fight in the hopes that a higher court will also rule DOMA unconstitutional.

This article mentions two things—defending DOMA in court and enforcing it. The DOJ and Administration position has been, we will not defend it but we will enforce it. So, some of the seemingly strange things they do like not putting same-sex spouses on employee insurance plans are just a reflection of that policy.