Harvard Law professor Laurence H. Tribe argues that the Smelt v. United States case that challenged the Defense of Marriage Act was weak, and would not have served the interest of the gay rights movement.
In an interview with the Advocate, Tribe states:
Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it’s not anywhere near as strong as the one that was brought in the federal district court in Massachusetts [a suit filed by Gay and Lesbian Advocates and Defenders].
...the broader theories advanced in the [Smelt] lawsuit is basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down.
A strategic Justice Department interested in a litigation strategy that has some realistic chance of success certainly would not have taken [the Smelt] case as the one in which the Constitutional vulnerabilities of DOMA should be explored.
The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration’s position doesn’t take that institutional reality into account.