The Department of Justice on Thursday filed an appeal in two cases in defense of the federal Defense of Marriage Act.
The appeals were filed months after the DOJ had announced plans to appeal the rulings made in Gill v. Office of Personnel Management and Massachusetts v. United States. In both legal cases, judges ruled that the federal definition of marriage as between one man and one woman was unconstitutional.
The Obama administration's defense relates that there is a "sufficient rational basis" for the law, clarifying that DOMA establishes uniformity in the federal application of law. It also holds that the definition of a formal union between a man and a woman builds on the basic understanding of marriage.
At the same time, the brief states, "Our society is evolving" and "the 'science of government ... is the science of experiment.'"
"Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society."
Still, the DOJ acknowledges that "in the end, the large majority of states today do not recognize same-sex marriage."
Alliance Defense Fund Legal Counsel Dale Schowengerdt criticized DOJ's defense as "deficient."
"The administration refuses to make the argument that the Congress made [when establishing DOMA]," asserted Schowengerdt.
President Barack Obama has expressed support for civil unions for gay and lesbian couples and recently said that his view on same-sex marriage is "evolving."
Schowengerdt believes the DOJ is giving a weak defense of DOMA because the president is in favor of its repeal.
Obama has stated several times that he does not support DOMA and believes that it is discriminatory. But as president, he has a duty to uphold existing law, he stated earlier.
According to Schowengerdt, a strong defense would acknowledge DOMA as an effort to encourage heterosexual marriage because of the ability to produce children in a stable family environment.
ADF, a religious freedom defense group, has been active in the defense DOMA. Schowengerdt said ADF plans to file a brief that makes the arguments that DOJ did not. But ADF will not be alone in its efforts, he noted.
"[DOMA] is going to get a vigorous defense from third party groups," he shared.
DOMA, enacted in 1996, defines marriage as "a legal union between one man and one woman as husband and wife," and the word "spouse" as "a person of the opposite sex who is a husband or a wife" for the benefit of federal laws for items such as federal employee benefits. The act also re-establishes states' right to define marriage in their own terms without having to defer to other state rulings.
The Massachusetts ruling is trying to undermine DOMA's allowance for states to decide on the definition of marriage and force federal laws to redefine the institution to include homosexuals.
In The Commonwealth of Massachusetts v. the U.S. Department of Health and Human Services, Judge Joseph L. Tauro issued a ruling last summer denying a USDHHS motion to dismiss the state's lawsuit, proclaiming that DOMA violates the 5th and 10th Amendments. In companion case Gill v. Office of Personnel Management, a similar ruling was given.
Schowengerdt said the chances are "good" that these rulings will be overturned.
"We are hopeful that federal court will overturn those decisions because they're out of step with federal precedent," he maintained.