Just when some in the gay community were asking what difference it would make were Mitt Romney to beat Barack Obama in November, we have this.

Speaking to a federal appeals court judge, the lawyer representing Speaker of the House John Boehner, arguing in defense of Congress’ anti-gay “Defense of Marriage Act,” told a judge that while it it permissible for Congress to ban gay couples from enjoying the benefits of marriage, it would not be permissible to ban “blue-eyed people” from also receiving such benefits.

Lawyer Paul Clement, speaking on behalf of the Bipartisan Legal Advisory Group of the House of Representatives, which is defending the law, told the appeals court that the Defense of Marriage Act was consistent with the intention of Congress to continue “preserving programs the way they’ve always been — not opening these programs to others.” He said the desire to save the government money was a rational basis for the law as well, though “you can’t go about that rational basis in an irrational way.” As an example, he said the government cannot deny benefits to blue-eyed people.

In contrast to Boehner’s bigoted arguments, the Obama Justice Department was great. They talked about gays and lesbians having been subjected to a long history of discrimination, and that sexual orientation is “an integral part of human freedom.”

The judge appeared upset that Justice is now opposed to DOMA, when they supported it in the past. Yeah. Well maybe the judge should be just as concerned with WHY the administration defended DOMA in the past, rather than WHY they’re not defending it now. I’d argue that their position today is their honest position. Their position in the past was somewhat political. Though not entirely…

Joe and I argued on these pages, early and often, that the administration was NOT legally required to defend DOMA. The administration appears to have legitimately believed that they didn’t have a choice. Then someone looked more deeply into the matter (after we “urged” them to rather publicly) and they discovered that, indeed, the administration is not legally to defend every law.

Justice should simply tell the judge that fact. Sometimes in the law, you do more research, and you find out you were wrong. And the honest thing, the ethical thing, for any lawyer to do when he finds out he was wrong about the law, is to do right by the law.