The president has long favored a repeal of the Defense of Marriage Act of 1996. | AP Photos Brief fuels gay marriage speculation

A legal brief the Justice Department filed with the Supreme Court Friday asking the justices to strike down a key part of the Defense of Marriage Act is raising hopes among gay rights advocates that President Barack Obama is on the verge of embracing a federal constitutional right to same-sex marriage.

The brief formally urges the court to declare unconstitutional the portion of the 1996 law barring recognition of same-sex marriages by the federal government for income tax purposes, federal employee benefits, immigration and myriad other programs.


( FULL TEXT: The White House's brief)

The portion of DOMA barring federal benefits for same-sex spouses “targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society,” Solicitor General Donald Verrilli and other government lawyers write in the brief. “It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 [of DOMA] be invalidated.”

The brief pulls few punches in its effort to knock out DOMA, using sweeping language about the history of discrimination against gays and finding no legitimacy in the reasons some have offered for rejecting same-sex marriages. The unsparing tone of the government’s brief led some observers to suspect that the Justice Department is laying the groundwork to endorse a federal constitutional right to same-sex marriage in another pending case that addresses that question more directly.

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The Obama administration must decide by next week whether to join with those urging the court to strike down California’s voter-approved ban on gay marriage, Proposition 8. The federal government is not required to file any brief in the Prop. 8 case, but those arguing against the measure and in favor of a constitutional right to gay marriage have until Thursday to weigh in with the high court.

“There is nothing at all tentative about the government’s embrace of gay equality in this brief. And next week I think we will see the government urging the same standard of review be used to overturn Prop. 8, and with it, all anti-gay-marriage laws,” said Richard Socarides, a gay rights advocate and White House adviser to President Bill Clinton. “It’s clear from the administration’s DOMA brief that they understand and now embrace its connection to the Prop. 8 case. The discrimination evidenced by Prop. 8 itself is cited to support the standard of review urged by the government to strike down DOMA.”

When asked about the broader issue in a TV interview this week, President Barack Obama was cagey and did not tip his hand, although he was clearly aware that gay rights advocates have been lobbying the administration to take the plunge and endorse a federal constitutional right to same-sex marriage.

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Endorsing such a right would be politically easy for Obama, but intellectually a bit more challenging. During the 2008 campaign and much of his first term, he said the marriage issue should be left to each state to resolve and wasn’t the purview of the federal government. Spokesmen for Obama said he opposed measures like Prop. 8, but they refused to say whether they viewed such gay-marriage bans as unconstitutional.

The Obama administration brief filed Friday addresses the case of Edith Windsor, who lived with longtime partner Thea Spyer in New York and married her in Canada in 2007. When Spyer passed away, Windsor asked for a refund of estate taxes she paid. The Internal Revenue Service denied the request, citing DOMA’s provisions recognizing only heterosexual marriages.

While Obama long favored repeal of DOMA, his administration initially resisted court cases challenging the law, just as previous administrations had done. However, Windsor’s case was the first to raise the issue in a judicial circuit where there was no precedent on how to approach laws discriminating against gays and lesbians.

In February 2011, on the recommendation of Attorney General Eric Holder, Obama decided not to defend the law any longer. The Republican-led House of Representatives ultimately stepped in to defend DOMA, hiring renowned Supreme Court litigator Paul Clement to oversee the litigation. He’s expected to argue for the law in front of the justices next month.

The House brief filed last month argues 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.

“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.

However, the Justice Department brief filed Friday asks the justices to declare for the first time that laws targeting gays and lesbians should be subject to “heightened scrutiny” akin to that applied to classifications based on gender, but not as searching as court review of measures that discriminate on the basis of race. The advances gays and lesbians have made in recent years politically don’t undercut their need for protection from the courts, particularly since anti-gay measures remain on the books in dozens of states, the DOJ lawyers argue.

The brief also argues that gays and lesbians have faced a long history of discrimination in the United States, dating back to Colonial-era laws that made homosexual conduct punishable by death. The government lawyers say none of the bases that Congress offered for passing DOMA 16 years ago, such as promoting child-rearing and traditional marriage, is advanced in any material way by denying federal recognition to gay marriage.

“Tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles,” Verrilli and his colleagues write.

“Any debate over the relative merits of same-sex parenting is beside the point: Section 3 [the DOMA provision banning federal benefits to same-sex married couples] neither promotes responsible opposite-sex parenting nor prevents irresponsible same-sex parenting. The legislative record contains no evidence that denying federal benefits to same-sex couples legally married under state law in any way serves to encourage responsible procreation or child-rearing, whether by opposite-sex or same-sex couples; and it is hard to imagine what such evidence would be,” the Justice Department brief says.

The brief does contain a couple of concessions to the other side, acknowledging that DOMA could pass a so-called “rational basis” test applied to laws that don’t veer into sensitive issues like race or gender. The Justice Department also says the law may not have been the product of “hostile animus” against gay people.

The new brief also argues that being gay is “immutable” — a label courts have given to characteristics like race, gender and being born to unwed parents.

“The broad consensus in the scientific community is that for the vast majority of people (gay and straight alike), sexual orientation is not a voluntary choice,” the government brief argues.

A small passage in Friday’s brief, discussing military service by gays and lesbians, is written directly in Obama’s voice.

“Valor and sacrifice are no more limited by sexual orientation than they are by race or by gender or by religion or by creed,” the brief says, quoting remarks Obama made in 2010 when he signed legislation setting in motion the repeal of the ban on openly gay servicemembers.