Writing for The Atlantic, Andrew Cohen says that John Boehner's decision to defend the Defense of Marriage Act can't change the fact that is a poorly-written law:
House Republicans and other same-sex marriage foes are kidding themselves if they truly believe that the DOMA is on the ropes now because Justice Department attorneys dropped the ball. That is so wrong as to be delusional. Don't be similarly fooled. The Marriage Act is in legal jeopardy today because its primary legal justifications were wiped out -- I mean, destroyed -- by U.S. District Judge Joseph Tauro, the venerated Nixon appointee sitting in senior status in Massachusetts. His two companion rulings last July weren't the result of poor lawyering by the feds. They were the result of an avalanche of compelling evidence presented by same-sex marriage opponents. They were the result of inherent and evident conflicts between the purpose of the federal statute, the purpose of same-sex marriage laws in states like Massachusetts, and the Constitution.
In one case, Judge Tauro that the federal government had no authority to regulate marriage, an area traditionally left to the states. In the other, Judge Tauro ruled that the DOMA violates the equal protection rights of same-sex couples who are lawfully married under their own state's laws. The Justice Department's arguments in those cases failed because they were weak to begin with -- not because they were weakly presented. There are some facts, after all, which even good government lawyers cannot create. And, just you watch, those arguments won't suddenly become stronger now just because new courtroom tribunes are making them. The federal judiciary's built-in bullshit detector won't allow it.
For example, Justice Department lawyers are surely not to blame for the fact that the Marriage Act, by Judge Tauro's count, implicates 1,138 other "federal laws tied to benefits, protections, rights or responsibilities to marital status" each one representing a way in which lawfully-married couples in five states and the District of Columbia are deprived of the same rights (and responsibilities) as their opposite-sex counterparts. Government attorneys surely didn't make up the fact that state veterans cemeteries which receive federal funding are prohibited by the Marriage Act from allowing same-sex spouses to be buried there.