Given that Romer and Lawrence were based on rational basis review, and Lawrence specifically carves out marriage (”[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”), there’s no precedent on which to rely in saying that sexual orientation is a suspect classification such that failing to recognize SSM would violate a constitutionally-protected form of equality.

The only instance I can find where the federal government was unwilling to recognize a type of marriage, the Supreme Court ruled that there was no constitutional right to such a marriage. I don’t know of a precedent for the federal government to be forced to recognize a marriage that Congress has said it doesn’t want to recognize.

In short, Smelt might reasonably be considered premature. It requires a judge willing to push past rational basis to a level of scrutiny used for sex classifications (which is where I’ve always thought sexual orientation belonged anyway since it’s based on the sex of the parties).

Tautology – Logic – a compound propositional form all of whose instances are true, as “A or not A.”

“The federal government recognizes a state’s marriages or the federal government does not recognize the political entity to be a state if its marriages are disapproved.”

Exactly. So given the lack of on-point precedent, the brief cites precedent–offensive to some–which, if anything supports Section 1 of DOMA, not 2 (see br. at 16-18). The DOJ’s cited argument stretches the precedent out of shape, and for that reason alone need not be made, regardless of whether the DOJ has an obligation to defend Section 2 of DOMA.

As an aside, I’m not sure what definition of tautology you’re applying, but the statement that “[u]p to this point, I believe the federal government took a marriage, so long as duly licensed by a state, as a marriage for purposes of determining federal benefits” does not qualify under any traditional meaning. Perhaps you mean that statement is misleading?

Sure, and one can argue that women always had the right to vote and it was just unconstitutionally denied or never before properly recognized until the 19th Amendment. Even to someone who isn’t a legal realist, “it’s still a right even if it was invisible until very recently” is not a good argument. It’s also irrelevant to the precedent of the federal government’s recognizing marriages.

The federal government has recognized marriages licensed by states, but this is potentially tautalogical given that territories that refused to conform their marriage laws as the federal government desired were not allowed to become states. For example, within Utah polygamous marriages were recognized, but the territory was refused admission to the Union until it had outlawed such marriages. That would be an instance of a type of marriage that the federal government had never recognized before (in contrast to interracial marriage, which the federal government always had recognized).

Thanks for the thoughtful response. A couple points:

There’s an argument that gay marriage isn’t new at all–rather, the right existed in various state constitutions but was always unconstitutionally denied or never before properly recognized. But that’s not critical to my point.

My argument is also not precisely that “because the federal government never treated interracial marriage as a new form of marriage, it cannot say that SSM is a new form of marriage”. Rather, my point is, for the purposes of granting federal benefits to married couples, I don’t believe any precedent allows the federal courts to deny that a marriage is or is not a marriage. Up to this point, I believe the federal government took a marriage, so long as duly licensed by a state, as a marriage for purposes of determining federal benefits. Is that incorrect?

But many states always allowed for interracial marriage, so the federal government has always had to recognize interracial marriages. There never was a period in U.S. history where there were no interracial marriages at all; of the original 13 states, NY, VT, NH, CT and NJ never prohibited interracial marriage. (And of course what was deemed “interracial” varied greatly from one state to another. Many statutes drew a line between whites and all non-whites, while some like Oklahoma’s drew the line between blacks and all non-blacks.)

In contrast, there is no state that has always allowed for same-sex marriage. It is an innovation in our law to recognize SSM. There also never has been any variation from marriage to recognize interracial relationships; either they were criminally penalized, or they were legally recognized as marriages. There were no domestic partnerships, civil unions etc. for interracial couples.

While I consider Loving v. Virginia a significant precedent for the unconstitutionality of a state government’s distinguishing between citizens for the purpose of marriage on a basis that the Constitution does not allow (whether it’s race or sex), if you’re going to argue that because the federal government never treated interracial marriage as a new form of marriage, it cannot say that SSM is a new form of marriage, you might want to compare their respective histories more carefully. When the Lovings got married to D.C. and then moved to Virginia, they weren’t just dealing with having the Commonwealth refuse to treat them as spouses. Under the laws against fornication, and particularly interracial fornication, they were criminally liable for living together when Virginia did not recognize them as husband and wife.

I do not know of a case where an interracial couple were demanding benefits; all the cases regarding interracial couples with which I am familiar were either demands to be allowed to marry in a state that forbade their marriage, or appeals from criminal charges.

Someone tell me if I’m wrong, but I haven’t seen a precedent for the federal government denying marriage benefits to, e.g., a mixed-race marriage on the basis that there are two kinds of marriage under federal law: same-race marriage and mixed race marriage.