by Lisa Keen
In a dramatic turnaround, a brief filed Monday by the U.S. Department of Justice states emphatically that the Obama administration "does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal."
While gay legal activists applauded the statement as a significant improvement over an earlier legal brief, they said they are also disappointed that the Department of Justice still suggests that the federal Defense of Marriage Act is constitutional.
The DOJ filed the brief in Smelt v. U.S., one of several federal lawsuits seeking to strike down DOMA, which bans federal recognition of same-sex relationships.
In an earlier brief filed in the case in June, the DOJ drew a firestorm of criticism from the LGBT community when it asserted that DOMA addresses a legitimate need for the federal government to adopt "a cautious policy of federal neutrality toward a new form of marriage." The brief asked the courts to uphold DOMA in order to protect the federal government's "scarce resources" and its ability "to respond to new social phenomena one step at a time, and to adjust national policy incrementally." And it stated, emphatically, "DOMA does not discriminate against homosexuals in the provision of federal benefits."
In its latest brief filed August 17, the Justice Department continues to urge the court to dismiss the case based "on the issues of jurisdiction and standing alone." It disassociates itself with right-wing contentions that government should ban same-sex marriage to promote procreation or to favor one family structure over another. It notes instead that the American Medical Association and several other professional medical and child welfare groups have concluded, "based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents."
"With respect to the merits," said the brief, "this administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal."
The White House also issued a statement Monday from President Barack Obama: "I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law."
Jennifer Pizer, head of the marriage project of the Lambda Legal Defense and Education Fund, called the brief a "dramatic improvement over the prior one in multiple important ways."
Evan Wolfson, head of the national Freedom to Marry group, said he was heartened "to see the administration getting its legal position more in line with its policy position –that the so-called Defense of Marriage Act is deeply discriminatory and needs to go."
"I hope we'll also see the White House work with leaders in Congress to repeal DOMA as soon as possible," said Wolfson. "But this brief is definitely a vast improvement over the last one."
The Human Rights Campaign also issued a statement, applauding improvements in the DOJ arguments but adding, "It is not enough to disavow this discriminatory law and then wait for Congress or the courts to act."
The 'reasonable' defense
The brief says the DOJ is simply following a long-standing practice of "defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the department disagrees with a particular statute as a policy matter, as it does here."
In a footnote, the brief contends that the Obama administration must defend the law, out of "the respect appropriately due" to Congress and to ensure that "subsequent administrations will faithfully defend laws with which they may disagree on policy grounds."
Gay legal and political activists disagree.
There seems little doubt that presidents are expected to enforce existing laws, but there is no requisite that they defend unconstitutional ones in court. The presidential oath of office states that the oath-taker "will, to the best of my ability, preserve, protect, and defend the Constitution of the United States."
And Lambda Legal's Pizer offered numerous examples of when "past administrations decided a statute was invalid and not worthy of defense." Under President Ronald Reagan, for instance, the DOJ declined to defend the independent counsel statute, the Gramm-Rudman Defense Control Act, and the one-house veto.
"Indeed, under the separation of powers doctrine," said Pizer, "it usually is understood that the administration has an independent right and duty to exercise independent judgment about whether particular laws passed by Congress are constitutionally defensible and only to make defense arguments they believe to be legally sound."
"While [the DOJ attorneys] contend that it is the DOJ's duty to defend an act of Congress," said the HRC statement, "we contend that it is the administration's duty to defend every citizen from discrimination."
The August 17 brief also reiterates arguments from the brief in June, noting that federal courts so far have upheld the constitutionality of DOMA, and it urges the district court now to "find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states."
Pizer said that Lambda Legal doesn't think there are any such reasonable and legitimate arguments.
"That is where we continue to differ with the administration," said Pizer. DOMA, she said, "was motivated purely by prejudice and the overt anti-gay politics of the day."
Pizer said her organization is "disappointed that this brief continues to argue that anti-gay discrimination does not deserve serious constitutional scrutiny."
"The brief relies on old decisions that we believe no longer apply, and on low-level court decisions that would not control [the outcome of the case] in any event," said Pizer. "So there is more serious discussion to be had."
But Pizer said Lambda Legal is "immensely gratified that the administration has specifically repudiated the defamatory claims anti-gay groups make that denying same-sex couples equality somehow benefits children."
"It really is a new day for our community," said Pizer. "And while we are not where we believe we should be, and much more work needs to be done, the important progress and respectful tone of this brief are meaningful improvements and very promising."
Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders, another key leader in the LGBT community's legal fight for equal rights in marriage, agrees.
"We still have a fundamental disagreement with the government as to the constitutionality of DOMA ... and believe the government is simply wrong in stating that 'reasonable arguments can be made in support of [its] constitutionality,'" said Buseck.
But he, too, applauded the administration's turnaround in the brief.
"We are pleased," said Buseck, "to see that this administration, contrary to its predecessor, is acknowledging simple reality, i.e., that children have been, and continue to be, raised by gay and lesbian couples and that those children grow up as well-adjusted as any other American children."
Kate Kendell, executive director of the National Center for Lesbian Rights, said the administration should "stop defending this abhorrent law that hurts families and lacks any legitimate justification."
In defending DOMA on procedural grounds, the DOJ brief appears to ignore the discriminatory effect of the law and routine aspects of marriage. It claims the gay couple filing the lawsuit doesn't have legal standing to challenge DOMA because they have stated no plan to seek recognition of their California marriage license in another state and have not applied for federal benefits.
Attorneys in the Smelt case are due back in the federal district court in Los Angeles on Monday, August 24. The case, in the U.S. district court for Central California, was filed on behalf of Arthur Smelt and Christopher Hammer, who were married in California last year during the period the state was allowed to issue marriage licenses to same-sex couples.