In 1996 Congress passed the Defense of Marriage Act by huge bipartisan votes -- 342 to 67 in the House and 85 to 14 in the Senate. President Bill Clinton signed the measure into law.
Now, the Obama administration says DOMA, which permits states to refuse to recognize gay marriages from other states and also creates a federal definition of marriage as the union of one man and one woman, is unconstitutional. In Boston on Wednesday, Stuart Delery, an attorney for the Justice Department's Civil Rights Division, urged the First Circuit Court of Appeals to find DOMA violates the Constitution by discriminating against gays and lesbians. "I'm not here to defend [the law] on any standard," Delery told the court.
What was striking about Delery's request that a federal court strike down DOMA was that just a day or two before, President Obama railed at the very notion that a federal court would strike down any law passed by Congress.
"I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said Monday about the arguments over Obamacare before the nation's highest court. The danger presented in the health care case, the president continued, is that "an unelected group of people would somehow overturn a duly constituted and passed law."
The answer is, of course, that the administration is making a political argument for its positions, not a legal one.