Justice Defends DOMA

The U.S. Department of Justice Thursday night filed a motion to dismiss a legal challenge to the Defense of Marriage Act, the federal law that defines marriage as being between a man and a woman.

"As it generally does with existing statute, the Justice Department is defending the law on the books," said Justice Department spokesperson Tracy Schmaler. "As you know, the president has said he wants to see a legislative repeal of DOMA, but until Congress passes legislation repealing the law, the administration will continue to defend the statute when it's challenged."

The brief in the case, Smelt v. the United States of America , was filed at the federal district court level last year and the Justice Department argues that the claim should be thrown out because the plaintiffs have no legal basis for their case. The arguments do not address the right of same-sex couples to marry, but rather whether those marriages should be recognized by other states and, indeed, the federal government.

To read the brief as an LGBT person is to be disheartened. John Aravosis at Americablog has a nice point-by-point breakdown of the arguments. But chief among them are two that strike at the heart of the marriage dilemma at the federal level:

1) Federal benefits are not automatic or guaranteed and, since gays are not deemed a protected class of citizen, as such, they are undeserving of the same level of considerations that other minorities might get if they were similarly situated.

According to the brief: "...the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental -- in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification."

2) As it pertains to same-sex marriage, Justice argues that it's completely constitutional for Congress to take a go-slow approach to recognizing certain kinds of marriages, thereby excluding certain people from the federal rights that others enjoy.

The brief states: "...Congress has long extended certain federal benefits and protections on the basis of just one (type of relationship) -- that between a husband and wife (and their minor children). Congress is entitled under the Constitution to address issues of social reform on a piecemeal, or incremental, basis. It was therefore permitted to maintain the unique privileges it has afforded to this one relationship without immediately extending the same privileges, and scarce government resources, to new forms of marriage that States have only recently begun to recognize. Its cautious decision simply to maintain the federal status quo while preserving the ability of States to experiment with new definitions of marriage is entirely rational. Congress may subsequently decide to extend federal benefits to same-sex marriages, but its decision to reserve judgment on the question does not render any differences in the availability of federal benefits irrational or unconstitutional."

Overall, the brief takes a kitchen-sink approach to defending DOMA, presenting a vast number of reasons to deny the claim but no one coherent line of thinking.

"What is disappointing about it, is that it's not a sophisticated finely tuned argument made after examining the president's prior statements," says Richard Socarides, a New York lawyer who served as an adviser to President Bill Clinton on LGBT issues.

Socarides said the scattershot nature of the brief suggested that it had not been reviewed at "the highest levels" of the department. While he called that "inexcusable," he found a glimmer of hope in the spokesperson's remarks.

"The legal brief is more aggressive than I'd like to see," he said. "But the DOJ statement, which references the president's stated desire to see the law repealed, seems appropriately calibrated. They are in a tough spot. It's made all the more difficult by inaction on the legislative front. A DOMA repeal bill should have been introduced in January."

It's worth noting that other legal challenges to DOMA still exist, including one filed in March by Gay and Lesbian Advocates and Defenders (GLAD) on behalf of eight married couples in Massachusetts. The Smelt case is also entirely separate from another high-profile California case filed last month by attorneys Ted Olson and David Boies on behalf of same-sex couples who have been denied marriage licenses by the state based on Proposition 8.

UPDATE: The following press release was issued Friday afternoon by major LGBT groups in response to the DOMA brief.

LGBT Legal And Advocacy Groups Decry Obama Administration's Defense of DOMA

FOR IMMEDIATE RELEASE: June 12, 2009

We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act against Smelt v. United States , a lawsuit brought in federal court in California by a married same-sex couple asking the federal government to treat them equally with respect to federal protections and benefits. The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.

We disagree with many of the administration's arguments, for example that DOMA is a valid exercise of Congress's power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be "neutral" with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing "neutral" about the federal government's discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of "neutrality" ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.

When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.

Signed:
American Civil Liberties Union
Gay and Lesbian Advocates and Defenders
Human Rights Campaign
Lambda Legal
National Center for Lesbian Rights
National Gay and Lesbian Taskforce