I totally missed this. According to Dale Carpenter, the Obama Administration has endorsed all the conservative arguments against same-sex marriage. I wonder if that's a bit of an exaggeration, but it does seem as if one important argument that's roundly derided by most of my philosopher friends is present in the DOJ brief, and it's an argument that I think is exactly right (even if very unpopular among those who favor same-sex marriage).
The DOJ argues that it doesn't violate equal protection on sexual orientation grounds to fail to recognize same-sex marriage, because gay and straight people aren't getting different marriage rights as each other. Gay men are free to marry anyone of the same group that straight men are free to marry -- women. It's true that gay men can't marry other gay men, but neither can straight men. So any discrimination that's taking place isn't according to sexual orientation. Men of both orientations (gay and straight) are being treated equally. You might argue that it's unfair because one is able to marry according to their preference and the other isn't, but they are strictly speaking given the same marriage rights, and it isn't discrimination along sexual-orientation lines. There's a much better explanation of what's going on, which I'll get to in a moment. But I wanted to say that I'm glad someone left-of-center is acknowledging this, because it seems obviously true to me and seems completely the wrong way to argue that this is discrimination. (The DOJ apparently doesn't intend to argue that right now about marriage, though. The Obama position is pretty clear that there shouldn't be a federal-level recognition of same-sex marriage but that there should be a federal-level recognition of civil unions with all the civil rights that marriage would convey.)
I've seen all manner of twists of logic to try to resist this conclusion, but I don't know how you could get around it. It's not sexual-orientation discrimination to treat all gay men and straight men equally any more than Prohibition was discrimination against drinkers of alcohol. It simply wasn't. Everyone was prohibited from alcohol, not just drinkers. It certainly affects those who drink in a way that it doesn't affect those who don't, but that doesn't mean that drinkers were being discriminated against, since that would involve being singled out with a law that doesn't apply to others. Being singled out with a law that others don't care about isn't the same thing as being singled out with a law that only would apply to some people. Requiring people to wear motorcycle helmets doesn't affect me because I don't ride a motorcycle, but I'd have to wear a helmet if I were to ride one, so it's not discrimination against motorcycle riders.
Nevertheless, there's a discrimination argument that the DOJ brief doesn't acknowledge. In fact, there are two. I think these arguments are both also very obvious once you consider them, so it surprises me that they don't deal with them at all. Most people on the right on this issue don't accept these arguments, and I think there are things they can say in order to justify such resistance, but the claim in both cases does seem at least initially plausible to me.
One kind of discrimination involved with not allowing same-sex marriage is discrimination against couples on the basis of their being same-sex. The above argument is only about individuals. I don't think this would be discrimination against a gay individual, but you could much more easily argue that a couple who is same-sex is being discriminated against on the basis of their sexual orientation. Technically speaking, that's not right either. Two straight men could, in principle, decide to go against their sexual orientation and seek civil marriage. The discrimination here isn't really according to sexual orientation, then, but according to same-sex pairings vs. opposite-sex pairings. Treating a same-sex couple and an opposite-sex couple differently is discriminating against the couple who is being denied a privilege or right that the other couple is given.
(This gets immensely complicated in terms of the logic of it once you accept intersexual, transgender, or transsexual members of pairings, so I'm ignoring that for the sake of this argument. I don't think it affects what I'm trying to argue in any significant way, so I think for simplicity's sake it's not problematic to do so.)
The other argument is still about individuals but is not about sexual orientation at all. Denying a man the right to marry another man is discrimination if women are allowed that right. The same is true of denying a woman the right to marry another woman when a man can do so. But this isn't sexual-orientation discrimination. It's sex-discrimination. Men are given certain rights or privileges not given to women, and women have rights or privileges men don't have. This argument seems to me that it should be utterly obvious once it's made clear.
How, then, does the first argument (the one the Obama DOJ presents) get so much traction in certain circles while the second and third get ignored? Perhaps they just haven't thought of the second and third. But there may actually be responses to them. Conservatives on this issue might resist the second and third argument, but they have to argue for a few things to do so. I think the easiest way out of the second argument is to argue that couples have no rights as couples (at least none that matter for this issue). Then discrimination against a couple is perfectly all right as long as it doesn't rely on any discrimination against those same individuals. This is at least a plausible view given that the Constitution never embraces rights of pairings of people but only speaks of rights of the people as a whole and rights of individuals.
That still would leave the third argument, though. Can sex-based discrimination of this sort be morally justified? The Constitution does not guarantee protection against all sex-based discrimination. The movement for an Equal Rights Amendment stems from a desire to remedy that, but such an Amendment has failed every time someone has tried to get it through (partly because not many people want to remove the possibility of women's sports teams at state institutions or men's and women's bathrooms in public buildings, which would violate the letter of the law if such an amendment passed, given the Supreme Court's interpretation of the 14th Amendment to remove racial segregation). So those who want to justify state refusal to recognize same-sex marriage while recognizing opposite-sex marriage need to try to argue that this kind of sex-based discrimination doesn't violate whatever equal protection rights we have against sex discrimination.
I have no idea if that can be done. Maybe it would be easy. Maybe it would be immensely difficult. I don't actually care, because I don't think the government should recognize opposite-sex marriage to begin with, so I don't see why they should also recognize same-sex marriage, and my own preference would involve no discrimination in any of these ways. But I wanted to try to clarify what might need to be said for the conservative position that the Obama Administration seems to be advocating to work. I don't know of those who hold such a position actually making such arguments. I don't think either side on this issue has really gotten to the bottom of the discrimination issues. Those on the right seem to me to ignore arguments two and three just as those on the left get my first point wrong. I was happy to see the Obama DOJ admitting the first point despite (I'm sure) most people in the Obama DOJ very much favoring same-sex marriage as a policy matter.
So while I have to give the Obama DOJ credit for taking a stance here that's both out-of-character and (at least on that one point) certainly true, I nevertheless don't think they've quite got the issue nailed down properly. There is also something strange about this brief (and Obama's continued opposition to same-sex marriage) when juxtaposed with Obama's clear statement that DOMA and Prop 8 are discriminatory. I haven't figured out a way to put all of his statements together consistently, and it's not as if I haven't tried.