The Obama administration's robust defense of the indefensible Defense of Marriage Act in a court brief signals the latest and most egregious betrayal to LGBT Americans by the president and his Justice Department. Many LGBTs voted for Barack Obama last year, convinced by his promises that he would bring real change to this country and would act quickly to bring an end to homophobic laws and policies that for too long have treated us as second-class citizens.
Six months into his term, however, we remain unimpressed by the president, who has failed to act on any number of LGBT-related issues.
Last week's Justice Department brief went way beyond what was required of the attorneys' response to what is arguably a weak federal lawsuit challenging DOMA. Rather than simply stating the problems with the case, Smelt v. U.S., the Justice Department attorneys launched into a vigorous defense of DOMA. The brief states that DOMA is necessary and does not discriminate against same-sex couples because we can marry people of the opposite sex to obtain the federal benefits of marriage. That's just one of the right-wing arguments the brief uses in defending DOMA. In fact, the brief reads like it came from the Bush administration rather than the current one. That may be because one of the lawyers whose name is on the brief is W. Scott Simpson, a longtime Justice Department attorney. But Tony West, the assistant attorney general whose name is at the top of the document, should have known better. He's a progressive attorney who has not shied away from controversial cases. He was Obama's money man in California during the campaign, and helped raise a reported $500,000.
The DOJ brief is awful, and could possibly result in real harm to the LGBT community in the future regarding three areas of major concern: neutrality, financial resources, and state marriage laws.
Neutrality and financial resources
The brief states that because all 50 states recognize heterosexual marriage, "it was reasonable and rational for Congress to maintain its longstanding policy of fostering the traditionally and universally-recognized form of marriage." The brief goes on to state that as a result "a policy of neutrality dictated that Congress not extend benefits to new forms of marriage recognized by some states."
"[DOMA amounts to] a cautious policy of federal neutrality towards a new form of marriage. DOMA maintains federal policies that have long sought to promote the traditional and uniformly-recognized form of marriage, recognizes the right of each state to expand the traditional definition if it so chooses, but declines to obligate federal taxpayers in other states to subsidize a form of marriage that their own states do not recognize."
As Joe Solmonese, president of the Human Rights Campaign, noted in a scathing statement, "Same-sex couples and their families are not seeking subsidies."
Further, the brief defends DOMA by stating that it "ensures that evolving understandings of the institution of marriage at the state level do not place greater financial and administrative obligations on federal and state benefit programs. Preserving scarce government resources – and deciding to extend benefits incrementally – are well-recognized legitimate interests under rational basis review." This is a new and nonsensical argument that is shocking in its absurdity. Since when is saving money justification for unequal benefits? Gay legal groups are particularly outraged at this false line of reasoning and, in the long run, many are deeply worried that opponents of same-sex marriage could employ this argument as justification to deny equal federal benefits.
More importantly, the "neutrality" argument 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 same corresponding benefits that married heterosexual taxpayers receive, noted a statement from Lambda Legal Defense and Education Fund and several other LGBT and allied organizations.
"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," the groups noted. "For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality."
State marriage laws
The DOJ brief also is problematic by equating same-sex marriage to incest. While not explicitly mentioned as such, the brief nonetheless points out that courts have held that certain marriages performed elsewhere "need not be given effect, because they conflicted with the public policy of the forum," and cited the examples of an uncle who married his niece and first cousins who married in New Mexico but whose union was not valid in Arizona.
This language is extremely troublesome, and while the administration is not overtly making the comparison, it now finds itself open to criticism, and rightly so.
The Obama administration treats same-sex marriage as a novel, new concept, when in reality same-sex couples have been joined in unions for decades. With the advancement of state-sanctioned marriage in six states now, and others establishing domestic partnership or civil union registries, it is hardly a new idea. This is simply a recycling of right-wing arguments against same-sex marriage. The definition of marriage has changed and evolved, and it was profoundly disrespectful of the Justice Department attorneys to argue otherwise.
At this point, we are very concerned about the department's response to another federal lawsuit: what we believe is the more legally sound Gill challenge to Section 3 of DOMA. That case was painstakingly put together over several years by Gay and Lesbian Advocates and Defenders in Massachusetts.
As for Smelt, the best outcome would be if the federal courts dismissed it, which is what the DOJ brief is arguing. It's maddening, however, that the attorneys saw fit to reuse erroneous old talking points and invent new reasons for why same-sex couples should be denied the right to marry.