The administration made it clear during the latter half of Mr. Obama’s first term that it would not continue to defend DOMA in the court cases where it’s been challenged. Taking up DOMA’s defense has been the “Bipartisan Legal Advisory Group” in the US House of Representatives, directed by Speaker John Boehner to take the place of the Justice Department in arguing court cases on behalf of the controversial law.
The House brief filed last month asserts that the same-sex marriage issue should be left to the democratic process and that gays are quite capable of pursuing their rights in those venues, according to a Politico analysis.
“Gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history,” the House brief says.
Homosexual conduct has a history of being prosecuted as criminal in the United States. And although same-sex marriages now are legally recognized in nine states and the District of Columbia, many more states still have laws aimed at gays and lesbians – including restrictions on the adoption of children, banning gay marriage, and refusing legal benefits to same-sex couples.
“Tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles,” the Solicitor General writes in his brief.
The Supreme Court next month also is scheduled to take up California’s Proposition 8, which provides that "only marriage between a man and a woman is valid or recognized” in the state. Both Prop. 8 and DOMA have been declared unconstitutional by lower courts.