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DOJ Files Reply Brief In DOMA Challenge Case

Jim Burroway

August 17th, 2009

The Department of Justice filed its Reply Brief (PDF: 29KB/9 pages) in the case of Smelt v. United States this morning. That case seeks to overturn the Defense of Marriage Act through the courts. The restrained language in this brief indicates that the Obama administration heard loud and clear the outrage over its prior brief in the same case.

This time, the DOJ brief clearly states the administration’s belief that the Defense of Marriage Act, while constitutional, is discriminatory and should be repealed by Congress (p. 2):

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the 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.

To reiterate that point, the White House issued this statement (no link yet):

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. 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.

Interesting though, this time the DOJ refutes the claim by other parties which are trying to intervene to defend DOMA, claiming that the defense of so-called “traditional marriage” is needed in order to further procreation — and the DOJ quotes none other than Justice Antonin Scalia’s Lawrence v Texas dissent for support (pp. 6-7):

Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they 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. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

That last sentence has Focus On the Family’s Drive-By, err, Drive-Thru blog all up in arms, who called it “a new low on marriage.”

This case particular case challenging the constitutionality of DOMA is considered by many legal experts as rather weak. Another case filed in Massachusetts by the Gay and Lesbian Advocates and Defenders is considered a much stronger case. Last month, the Massachusetts Attorney General announced a second lawsuit to challenge DOMA’s constitutionality.



Timothy Kincaid
August 17th, 2009 | LINK

It’s a bit of a schizophrenic response. On the one hand they find DOMA to be discriminatory and wrong, but on the other it’s constitutional, reasonable, and only fair to homophobes.

“DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage,” according to the filing by Assistant Attorney General Tony West.


Monday’s court filing was in response to a lawsuit by Arthur Smelt and Christopher Hammer, who are challenging the federal law, which prevents couples in states that recognize same-sex unions from securing Social Security spousal benefits, filing joint taxes and benefiting from other federal rights connected to marriage.

Justice lawyers have argued that the act is constitutional and contend that awarding federal marriage benefits to gays would infringe on the rights of taxpayers in the 30 states that specifically prohibit same-sex marriages.

Because we all know that voters in Alabama have the right to dictate what is done with the social security contributions that are involuntarily taken out of your Massachusetts paycheck.

August 17th, 2009 | LINK

Yeah that last argument you quoted there is absolutely ridiculous, but at least it wasn’t dancing so close to the edge of blatant offensiveness.

Was that really so hard? Why couldn’t they get this right the first time?

January 8th, 2010 | LINK

It would seem to me that the DOJ is in the distasteful position of needing to defend this law (after all, it is under their jurisdiction) even though they do not want to. They want to see it taken apart, and they are searching for the least offensive, possibly debatable point they can. Their true hope, however, is to see it taken care of the way it was introduced, notably, as was noted in the article, through Congress. Why they couldn’t get it right the first time is most likely, they felt they had to reply with something they could use to defend their position, no matter how much they dislike it.

Richard W. Fitch
January 8th, 2010 | LINK

Ben – I don’t have a link, but one of the many articles I’ve read re: Jenkins-Miller indicate that if this case goes to SCOTUS, there is a chance that the issues of parental rights will create a contradiction to DOMA and possibly require the court to declare it unconstitutional.

January 8th, 2010 | LINK

So long as DOMA is destroyed, I’m happy. I was merely reading into how the DOJ seemed to want to handle it.

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