In March of 2011, one month after Attorney General Eric Holder announced the Department of Justice would stop defending a law that prohibited the federal government from treating same-sex marriages as equal to heterosexual marriages, Alabama Sen. Jeff Sessions was beside himself. Sessions was questioning President Obama's new nominee for Solicitor General, Donald Verrilli, Jr., who was filling the spot of newly confirmed Supreme Court Justice Elena Kagan. Sessions accused Kagan of "systematically" working to undermine the law—known as the Defense of Marriage Act (DOMA)—and wanted assurances from Verrilli that he wouldn't do the same. Here’s Sessions from his perch on the Judiciary Committee:
To me, this is one of the more dispiriting things I have seen. I've spent 15 years in the Department of Justice. My view was that a Solicitor General would never participate in what this department's Solicitor General has participated in—the failure to defend a perfectly defensible statute.
Maybe people can disagree about it's constitutionality, but not that it's defensible or not. ... This one really hit me hard.
Sessions provided no evidence that Kagan, who was confirmed in August of 2010, colluded to undermine the law other than it being his "view." But let's revisit what he means when he says DOMA was "perfectly defensible" and elsewhere in the clip that the Justice Department should have continued defending it.
Here's some arguments that the Obama administration had originally advanced in a 2009 brief when Justice Department lawyers were still defending the law:
1) That DOMA wasn't motivated by "animosity toward homosexuals." False. The 1996 Congressional record shows otherwise. A 1996 House Report on the law read: “Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.”
2) That the law was the product of "legitimate governmental interests," one of which was "promoting traditional marriages" because of their role in "procreation and child-rearing." In other words, heterosexual marriages are more important than same-sex marriages and, to the extent that gays have kids, those kids don't matter and, furthermore, we want to discourage gay child-rearing by depriving those families of the safety nets afforded to heterosexuals.
3) That DOMA wasn't in fact discriminatory because it "denied no federal benefits to which [gays] were entitled" since "they remain eligible" for those benefits if they would just marry a person of the opposite sex.
4) That DOMA was good policy because it helped save money and “preserve scarce federal resources” by denying benefits like Social Security survivor payments to gay couples.
These were just several of a litany of twisted, antiquated, and in some cases repugnant defenses that the Justice Department made in support of the law.
In my book on Obama era LGBTQ advancements, I reported extensively on the administration's deliberations over DOMA at both the Justice Department and the White House Counsel's Office. Administration lawyers spent more than a year and a half anguishing over the law before they finally concluded that it was not defensible under a "heightened scrutiny" standard of review. That's a fancy legal way of saying that, if you accept that lesbians and gays have suffered a history of discrimination and weakened political power, then laws that purposely disadvantage them should be viewed extra cautiously by the courts.
Under that analysis, Justice Department attorneys along with Attorney General Eric Holder and the president himself concluded that one could not make a constitutional defense of DOMA.
The fact the Jeff Sessions believes one could have and should have continued defending DOMA means two things: 1) he doesn't believe that laws affecting LGBTQ Americans should be subjected to a heightened scrutiny standard of review (i.e. LGBTQ people haven't experienced a history of discrimination); 2) to defend anti-LGBTQ laws, he would happily advance the type of arguments outlined above and probably much worse.