Justice Dept. appeals judge's decision on same-sex marriage

Washington Post Staff Writer
Saturday, January 15, 2011

The Obama administration has appealed the decision of a judge who struck down the federal government's ban on recognizing same-sex marriages, a move that was widely expected but further complicates the president's relationship with the gay community.

In July, a federal judge in Massachusetts invalidated a portion of the federal Defense of Marriage Act, ruling in favor of seven same-sex married couples and three survivors of same-sex spouses who had been denied access to federal benefits. The Justice Department had indicated it would challenge the ruling, as is customary when a federal law is challenged.

Gay groups had pleaded with President Obama to let the judge's ruling stand, but on Thursday, the Justice Department officially filed its appeal to the 1st Circuit Court of Appeals. Gay groups responded that they were ready to take the case to the next level.

"We see nothing really new in this brief, which reiterates many of the same arguments the government made in the District Court," said Mary L. Bonauto, the civil rights project director for Gay and Lesbian Advocates and Defenders, which is representing the plaintiffs."We're prepared to meet these arguments head-on and bring to an end the discrimination that is suffered by married same-sex couples like our plaintiffs."

GLAD had argued that the 1996 Defense of Marriage Act, which defines marriage from the federal perspective as between a man and a woman, violates the Constitution. It argued in part that the law violates states' rights and the Constitution's equal protection clause because it forces Massachusetts, where gay marriage is legal, to treat those couples differently from heterosexual couples.

In their 174-page brief, lawyers for the Justice Department countered that Congress was well within its rights to define marriage at the federal level.

Obama has said in the past that he does not support the right of gay couples to marry, though he said last month that his views are "evolving."His administration has shepherded through several reforms recently that expand the rights of gay couples to visit their ailing spouses in the hospital and recognize gay parents on passports. With Obama's backing, Congress in December voted to lift the ban on gays and lesbians serving openly in the military.

Opponents of same-sex marriage have accused the administration of mounting a lackluster defense in this case, while supporters say Obama could take a stand by declining to block what they view as progress on a matter of civil rights.

The Justice Department has said it has little choice but to defend the law. "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged in court," spokeswoman Tracy Schmaler said in a statement.

In a related, and also high-profile, case, California's governor and attorney general have declined to defend in court that state's voter-approved ban on same-sex marriage. That decision has complicated efforts to sort out the legality of the measure, called Proposition 8, because it is unclear whether the groups that back the provision are allowed to defend it in court.

Both cases are expected to end up before the U.S. Supreme Court.

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