Whelan's myth: As SG, Kagan abandoned her constitutional duty to uphold the law and “sabotag[ed]” DOMA

Whelan: Kagan “succeeded in sabotaging the Defense of Marriage Act that she was dutybound to defend” because DOJ “gratuitously abandoned strong grounds for defending DOMA.” In a July 9 Bench Memos post, Whelan wrote: “Solicitor General Elena Kagan, together with her colleagues in the Obama Department of Justice, has succeeded in sabotaging the Defense of Marriage Act that she was dutybound to defend." He added: “Her dereliction of duty offers powerful evidence that she would indulge her ideological preferences as a justice and provides ample reason for any senator to oppose her confirmation.” As evidence, Whelan linked to a July 2 blog post in which he argued:

[T]he Department of Justice during Kagan's tenure as SG filed a reply brief in a California case challenging the Defense of Marriage Act. In that brief, DOJ gratuitously volunteered that “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal” and made explicit that it was defending DOMA only because DOJ “has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality.” Further, DOJ gratuitously abandoned strong grounds for defending DOMA, as it asserted that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.”

In reality, DOJ followed precedent in its actions in DOMA case

It's not unprecedented for DOJ to abandon arguments like it did in the DOMA case; the Bush administration did so in a Second Amendment case. In the case Whelan cited, the DOJ followed precedent in its decision. It is not unprecedented for the DOJ to abandon arguments it has previously made. In the 2001 case of United States v. Emerson -- a criminal federal gun crime prosecution -- the U.S. Court of Appeals rejected the argument advanced by the federal government that “stare decisis requires us to reverse the district court's embrace of the individual rights model” of the Second Amendment and held that the Second Amendment did cover individual rights. The 5th Circuit nevertheless held that the statute at issue did not violate the Second Amendment. Subsequently, the defendant appealed to the Supreme Court. In its brief asking the court not to hear the case, the Bush Justice Department abandoned the argument that the Second Amendment did not cover individual rights.

Attorney General Ashcroft: Justice is not best achieved “by making any available argument that might win a case.” In a letter to U.S. Attorneys directing them not to argue that the Second Amendment did not protect individual rights, Ashcroft wrote:

Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.

Some courts have rejected the argument that same-sex marriage is related to “government interests in procreation and child-rearing.” Some state courts have explicitly rejected the argument that procreation and child-rearing bear any relationship to same-sex marriage bans. For instance, in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court stated that the Massachusetts same-sex marriage ban was not based on a procreation rationale because Massachusetts law “contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce.”