While I responded by comment on my guest-post, I wanted to fully address this issue on my own blog with a brand new post. I would like to clarify that what is unacceptable is the reasoning included in the brief.
The Washington Post does a lovely job of summarizing the questionable way in which this matter was handled:
The department could have fulfilled its obligation to defend the nation's laws without repeating ugly reasoning rooted in ignorance.
The Justice Department could have stopped with its sound argument that the case should be dismissed because the plaintiffs did not "claim to have plans to seek recognition of their . . . California marriage in another state" and they "do not suggest that they have applied for any federal benefits, much less been denied any at this point." Thus, neither an "imminent injury" nor an "injury in fact" attributable to DOMA has been established. The plaintiffs lack standing. Case closed. That would have been fine with gay rights groups, which viewed Smelt-Hammer as an imperfect vehicle for challenging DOMA's constitutionality. "We had no problem with DOJ getting rid of this case," one legal expert told me. "The plaintiffs didn't tell a good story."But Justice went further. It cited a 1961 case involving incest (a marriage of an uncle to a niece that was "valid in Italy under its laws") to show that states were not bound to honor "certain marriages performed elsewhere." Read the full article