It looks like the Obama administration has found a way to both oppose and defend the Defense of Marriage Act in court.
The Associated Press just reported this:
The Obama administration has filed court papers claiming a federal marriage law discriminates against gays, even as it continues to defend the law.
Justice Department lawyers filed new papers Monday seeking to dismiss a California suit brought by a gay couple challenging the 1996 Defense of Marriage Act.
In the newly-filed papers, the administration urges the repeal of the law but says in the meantime that it will continue to defend it as a law on the books.
At FindLaw, Cornell University Law School professor Michael Dorf recently explained why the administration could take such a position in this case. He wrote that:
One can think that a law such as DOMA should be repealed by Congress, but also think that it is constitutionally valid so long as it remains on the books. Moreover, the executive branch arguably has a duty to defend the constitutionality of duly-enacted statutes.
For background on the case, click here.
Update at 12:15 p.m. ET: Statements from Obama and the Justice Department.
The White House just released this official statement from President Barack Obama:
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 This brief makes clear, however, that my administration believes that the act is discriminatory and should be repealed by Congress.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.
And Justice Department spokeswoman Tracy Schmaler sent out this statement:
The government's filing makes clear that the administration believes the Defense of Marriage Act is discriminatory and should be repealed. The president has said he wants to see a legislative repeal of DOMA because it prevents LGBT couples from being granted equal rights and benefits.
The department's filing in this case upholds the rule of law in keeping with our obligation to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration's policy preferences.