Obama Administration Moves To Uphold DOMA Before Supreme Court
June 12th, 2009
John Aravosis has finally gotten a copy of the Justice Department’s brief urging the U.S. Supreme Court to dismiss the legal challenge to the so-called “Defense of Marriage Act.” The case was brought by Arthur Smelt and Christopher Hammer, who were married in California last year.
Avarosis goes out on a few limbs in his post, claiming that the Obama administration compares same-sex marriage to incest and pedophilia, and others are blindly running with it. The problem with that is that the brief does no such thing. It does mention that different states do regulate the qualifications for marriages differently with regard to kinship or age of consent, emphasizing that some states allow some marriages while others don’t. But trying to figure out if second and first cousins or sixteen-year-olds should marry isn’t the same as pedophilia or incest as Aravosis claims. If you really want a good example of how such a comparison has been made, go back and remember Rick Warren’s comparison and his reiteration that he does see it as equivalent. The Justice Department brief is not even close to being in the same league.
Nevertheless, there is plenty to be upset about without descending into histrionics and melodrama. For example, the administration’s brief reveals one cynical reasoning behind DOMA: that Congress has a right to determine how it preserves “the scarce resources of both the federal and State governments” (i.e. they save money by denying marriage equality to same-sex couples).
It also gives a tortured reasoning as to why DOMA does not violate the Equal Protection clause of the constitution. In case the court is inclined to see gay people as a suspect class, the brief points out that DOMA doesn’t mention gay people, but simply defines the gender of those who must be recognized as married by the federal and state governments — a legal re-casting of the utterly facetious “gays can marry people of the opposite sex” argument.
And the mere fact that the Obama administration sees fit to try to justify the constitutionality of DOMA is very troubling. When Obama ran for the Democratic nomination for President, he distinguished himself from other front-runners by declaring that he was for DOMA’s full repeal. That contrasted with Sen. Hillary Clinton’s position of advocating for only partial repeal of DOMA and leaving intact the provisions allowing states to refuse to recognize same-sex marriages performed in other states. When Obama became president, the new White House web site repeated his call for repealing DOMA. But that commitment has since been quietly dropped when the web site was revamped in April.
This case, Smelt v United States, is separate from the highly publicized case of Perry v Schwarzenegger, which was brought by the two prominent lawyers Ted Olson and David Boies and funded by the American Foundation for Equal Rights. In Smelt v U.S., the plaintiffs are a married couple seeking federal recognition of their California marriage, as well as the recognition of their marriage in other states. Perry v Schwarzenegger was brought by two unmarried same-sex couples and challenges California’s ban on same-sex couples’ access to marriage. There is also another separate DOMA challenge filed by GLAD on behalf of the widower of the late openly gay Congressman Garry Studds.
Update: Want another reason to be upset about this move by the Obama administration? How about this statement from Justice Department spokesman Matt Miller:
As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.
Miller is hiding behind the fact that the administration is charged under the constitution with the duty to enforce the law. But that is not the same as saying the administration is obligated by that same constitution to defend the law in court. The constitution does no such thing. In fact, virtually every administration has gone to the courts on behalf of plaintiffs or on their own behalf seeking to strike down laws they don’t like. This is a weak statement from a meek administration.