The rationale for Judge Walker’s decision striking down Prop. 8 would equally apply to the federal Defense of Marriage Act. After all, if it’s irrational and unconstitutional for a state to refuse to recognize same-sex marriages within its own boundaries, it’s irrational and unconstitutional for a state to refuse to recognize out-of-state same-sex marriages (a refusal that DOMA allows), and for the federal government to refuse to recognize same-sex marriages in contexts such as tax law and immigration law (a refusal that DOMA mandates). Will the Justice Department face political pressure to file an amicus brief defending this federal statute, by opposing Judge Walker’s decision?
The Department is already defending the constitutionality of DOMA in Gill v. Office of Personnel Management, where Judge Tauro held the law unconstitutional based partly on the same rationale as Judge Walker’s. But I take it that a federal amicus brief in the Prop. 8 case would be higher profile than the Gill litigation has been.