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In a landmark legal brief that reads more like one from the ACLU or a gay legal group, the U.S. Justice Department argues that homosexuals exhibit immutable characteristics, have suffered a history of discrimination and that the federal government’s marriage law is driven by prejudice. The legal brief — called a watershed moment by gay groups — seeks to have only part of the Defense of Marriage Act overturned, but its legal reasoning goes much further. The same legal arguments have been used in successful state court lawsuits to legalize gay “marriage.” If adopted by a federal court, the arguments eventually could be used in overturning not just all of DOMA but also the traditional marriage laws in the 44 states that do not recognize same-sex “marriage.”

“[G]ay and lesbian individuals have suffered a long and significant history of purposeful discrimination,” the department’s brief states, pointing to death penalty laws going back to Colonial times but also including current-day laws defining marriage in the traditional sense.

The Justice Department’s legal role is to defend the nation’s laws, but President Obama has ordered the department to stop defending the 15-year-old law in court. The House of Representatives has filled the void by hiring its own attorney.

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