The U.S. Department of Justice on Oct. 12 finally appealed two rulings by a lower court that deemed unconstitutional a portion of the 1996 federal Defense of Marriage Act, as it applied to Massachusetts same-sex married couples.

On July 8, federal District Court Judge Joseph Tauro of Massachusetts struck down in two separate opinions, Section 3 of Defense of Marriage Act – which requires that all federal benefits programs define marriage as the union of one man and one woman.

The Department of Justice appeal – filed with the 1st U.S. Circuit Court of Appeals – comes one week after Rep. Lamar Smith, R-Texas, acted on behalf of the U.S. Congress to intervene and defend the law. The reason: The Department of Justice had failed to properly defend Defense of Marriage Act.

The federal government has refused to use winning arguments, such as encouraging responsible procreation, protecting marriage and defending traditional morality. Rather the Department of Justice used as "rationale" two arguments: Congress wanted to preserve the status quo pending state decisions, and that incorporating same-sex marriage laws should be done progressively.

Bruce Hausknecht, CitizenLink's judicial analyst, said the real question is how effectively the Department of Justice will defend Defense of Marriage Act on appeal.

"By conceding in the trial court – without reason – that the government has no interest in promoting responsible procreation and child-rearing through marriage laws like Defense of Marriage Act, it essentially gave up its best and most compelling reason for why Defense of Marriage Act exists in the first place," Hausknecht said. "The Department of Justice seems to be operating under a strategy of 'defend in name only, sabotage in any way possible.'"

The U.S. Department of Justice's lackluster defense of the federal Defense of Marriage Act, prompted Rep. Lamar Smith, R-Texas, to take action. Smith, represented by the Alliance Defense Fund, filed motions arguing that Defense of Marriage Act, the federal law that defines marriage as the union of a man and a woman, was not properly defended by the Justice Department. As a result, Smith, on behalf of the legislative branch that passed Defense of Marriage Act, wants the federal courts to let him intervene as a defendant in the case so that he and ADF can defend Defense of Marriage Act. There are two challenges to Defense of Marriage Act in Massachusetts.