Obama Administration Moves To Uphold DOMA Before Supreme Court

Jim Burroway

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.


June 12th, 2009

WOW…I’m so frustrated with OBAMA right now. As a minority–he obviously forgets what it feels like to be discriminated against!

NO He Can’t !! We must not allow our hopes to be pinned on any politician. Speak up !! Stand UP!! and fight for equal rights!!

Ben in Oakland

June 12th, 2009

I read that bit about preserving scarce resources. If that were truly the goal, I have a few modest suggestions:

1) eliminate federal benefits for all married couples

2) eliminate federal benefits for any couples that have not been married a minimum of, say, five years.

3) stop pretending that this is merely about benefits.


June 12th, 2009

All I can say is that I did not vote for him!

Mark in Colorado

June 12th, 2009

Ouch! That must have been painful to write such an apologetic-like post.

Jason D

June 12th, 2009

small glimmer of hope, call it optimism, call it denial….

The “Congress scare resources”, and the “oh we didn’t say anything about gays, just the genders of the married couple”…

seem to be FLIMSY arguments.

Is it impossible to suggest that the Obama administration is going through the motions of defending DOMA — to borrow from Boxing, are they planning on taking a dive?

Maybe I’m just not ready to give up on him after only 4-5 months. Guess we’ll have to keep watching, and keep talking about it.

Priya Lynn

June 12th, 2009

After the Obama administration spent over 700 billion bailing out banks for a nebulous purpose this whining about the trivial amount it would cost for gay marriage benefits seems laughably pathetic.


June 12th, 2009

It’s getting harder and harder to justify my continued support for President “Change” Obama. Reining in the solicitor and attorney generals would have been at least an acceptable but passive step in the correct direction. Now this. LGBT are the easiest courted and most casually dismissed constituencies.


June 12th, 2009


@Jim, forget the scare quotes: so-called “Defense of Marriage”. They’re beneath you.


June 12th, 2009

As far as I am concerned, this brief is a declaration of war by the Obama Administration against gay couples. It could have been written by the Family Research Council. I think we can now safely say that we do not “have a friend in the White House.”

I have already sent an email to the White House letting them know how shocked and disgusted I am by this Adminstration’s brief in this case. I encourage others to do the same.


June 12th, 2009

@Ephilei, I’d have a time mentioning such dishonestly titled legislation without quotes.

Priya Lynn

June 12th, 2009

Ephelie, so-called “Defense” of Marriage Act is the proper way to refer to it. It is really an attack on marriage. No one’s trying to stop heterosexuals from getting married so its a joke to refer to opposition to equal marriage as a “defense”.


June 12th, 2009

I am going to have to visit some other blogs that have the mindset that Obama can do no wrong ………. and, see how they react to this.


June 12th, 2009

Question: Does anyone know the most effective way to express disapproval to the White House? I’m assuming there are email addresses and such, but I would fear some of them lead to black holes and trash bins … Are emails, faxes, or mailed letters considered particularly more or less effective? And so on.

It’s far too easy these days to be cynical but I’d like to at least do something more than panic or gripe on a comment board.


June 12th, 2009

The Department of Justice acts independently of the President and Congress. Under the current guidelines, they wouldn’t even notify Obama of this case since it doesn’t directly affect his presidential duties.

Please read this memo. It clearly articulates the distance the DOJ have from the President.


If you remember back to the Bush Administration, we progressives were angry that he used the DOJ for political ends. Frankly I am surprised that we are blurring the distinction in this case.

David C.

June 12th, 2009

Question: Does anyone know the most effective way to express disapproval to the White House?

Yes, send a letter by overnight courier to the president.

John Aravosis

June 12th, 2009

I never once mentioned pedophilia. I did, however, mention pederasty, which is sex with underage children who are in their teens. And I have to say, I’m not as comfortable as you appear to be with the notion of someone discussing my marriage (where I to have one), and their mind suddenly goes to someone marrying an underage (legal) child.

As for incest, the same argument as above. When talking about my marriage, please don’t start citing cases about incest (especially when Rick Warren did the same thing in December). You can deny the comparison all you want, but it’s offensive as hell, on its face.

Jason D

June 12th, 2009

I read the memo, but am not seeing it say that the DOJ is independent. In fact, if you look it up the AG is selected by the president and “serves at his pleasure” to be removed at any time for any reason.


June 12th, 2009

“Miller is hiding behind the fact that the administration is charged under the constitution with the duty to enforce the law.”

Actually, it’s by defending DOMA that they are truly relinquishing their duty to enforce the highest law: the U.S. Constitution!


June 12th, 2009

Jason: reread the first paragraph and Section 1a again. It’s against their policy to even notify Obama of these cases.

Secondly if you look at the brief itself, its is W. Scott Simpson.

Simpson appears to be a true blue Mormon: http://freepages.genealogy.rootsweb.ancestry.com/~vagenealogy/about_me.htm which explains a lot about the content and language used in the brief.

He has written briefs on DOMA cases since 2004 when he worked on behalf of the Bush Administration. This latest brief seems to be mostly a copy and paste job from the previous ones.




I get the feeling that this was handed off to this guy because he’d done it in the past.


June 12th, 2009

Jason: Reread paragraph one and section 1a. They clearly deliniate the policy distance the DOJ keeps from the President.

Secondly, the brief was written by W. Scott Simpson. He seems to be a true blue Mormon.


He filed briefs of 2 DOMA cases in 2004 and 2005 on behalf of the Bush Administration and the Republican governor of Florida. This latest brief seems to be a copy and paste job from the last one.

So my sense is that someone at the DOJ just handed this off to him because he’d done it before.


June 12th, 2009

I tried to put 4 links to the other briefs in my post and it disappeared. Sorry.

Jim Burroway

June 12th, 2009

Sorry toujoursdan. Our spam filter thinks that comments with four links or more is spam. I’ve retrieved your post from the spam queue.


June 12th, 2009

I have noticed that a couple gay bloggers who think that Obama does walk on water have not commented on this truly unseemly defense of DOMA. I guess that they are trying to digest it all and will in due time comment on it.

Jim Burroway

June 12th, 2009

Swampfox, I’m frankly having trouble finding prominent LGBT bloggers who haven’t commented on this. This idea you have that gay bloggers who once supported Obama are now giving him a pass isn’t measuring up to what I’m seeing. Maybe you’re following some of the more lesser-known bloggers than I am.


June 13th, 2009

It is now down to two gay blogs that I follow who has not commented on this event. I have noticed that Pam’s House Blend has gone ballistic. And, don’t know why GayPatriot.net is not commenting on it. The third one, is a small blog located in the midlands of South Carolina. I can only guess that he is trying to find the words to express his disappointment.


June 22nd, 2009

I demand Social Security survivor benefits for myself and my same sex partner. I demand the right for us to share health insurance as a couple. (We both work at places with the same insurance consortium).

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