In contrast to its position earlier this year, the United States Department of Justice has issued a new brief in its defense of the Defense of Marriage Act. The brief defends the law while expressing opposition to it and at the same time countering common arguments against same-sex marriage. Dale Carpenter at the Volokh Conspiracy has a discussion, and I quote this gem from it (emphasis added):
[After a quote from the brief] …This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage….
Personally, I think that the DOJ is trying to have it both ways; it is trying to appease LGBT rights activists by shooting holes through opponents’ arguments, while at the same time defending the act in order to appease social conservatives. In the end, I think that the likeliest result will be that the DOJ pisses off both sides. That’s what a “purple” action is likely to do.