Posts Tagged As: Smelt v United States

Judge Dismisses DOMA Case Which Prompted Controversial Obama DOJ Brief

Jim Burroway

August 24th, 2009

A U.S. District Judge dismissed the case of Smelt v. United States, the Southern California lawsuit challenging the Defense of Marriage Act which became known for the controversial brief supporting DOMA that was field by the Obama administration’s Department of Justice. Judge David O. Carter dismissed the case on a technicality, ruling that that the suit had been improperly filed in state court before transferring to Federal Court. For the case to go forward, it must be re-filed in Federal Court. Plaintiffs’ lawyer Richard Gilbert said he would re-submit the suit again.

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the administration’s belief that the Defense of Marriage Act, while constitutional, is discriminatory and should be repealed by Congress (p. 2):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 This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress.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.

Did the DOJ Brief Compare Same-Sex Marriage to Incest and Pedophilia?

Jim Burroway

June 22nd, 2009

It’s been more than a week since Americablog’s John Aravosis posted a copy of the Justice Department’s brief (PDF: 164KB/54 pages) defending the Defense of Marriage Act in the case of Smelt v United States. When I first wrote about Avarosis’ post, I that the brief compares same-sex marriage to incest and pedophilia. He didn’t like that, and made his feelings known in a comment accusing me of being “comfortable” with someone discussing my relationships and ” their mind suddenly goes to someone marrying an underage (legal) child.”

Aravisis also protested, “I never once mentioned pedophilia. I did, however, mention pederasty…” At the time, I suppose he might have had a point. His post didn’t actually use the word “pedophilia.” Instead, his headline screamed that the brief “[i]nvokes incest and marrying children.” That sounded to me an awful lot like pedophilia, but if he meant pederasty, then he was technically correct. But if he really meant pederasty, then why did he and fellow Americablog writer Joe Sudbay subsequently use the word “pedophilia” in just about every major post they have written on the subject since then?

The whole “Incest and pedophilia” meme has now gone viral, spreading around the blogosphere and mainstream media with very few stopping to question whether it’s really true. The line certainly grabs a lot of attention, and Avarosis’ assertion feels true to so many of us who have seen precisely this same comparison made by others throughout our struggle for equality. The claim is an old standby that we’ve seen countless time before.

The problem is, though, that when I read the brief on Friday a week ago, I didn’t see the comparison. But because so many people have taken that ball and run with it, I actually began to question myself and wonder if I really read what I thought I read. Gee, I thought, maybe I was wrong. Maybe I just missed it.

I’m a strong believer in going directly to the source material myself rather than relying on someone else’s word for it. That is, after all, the whole rationale behind this blog. So I went back and read the brief again, and I encourage you to do the same. First, download the brief (PDF: 164KB/54 pages). Go to page 1 of the brief (the eleventh page of the PDF document), and you will find this summary of what this case is all about:

This case does not call upon the Court to pass judgment, however, on the legal or moral right of same-sex couples, such as plaintiffs here, to be married. Plaintiffs are married, and their challenge to the federal Defense of Marriage Act (“DOMA”) poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no.

In other words, there are two questions before the court, and each question relates to one of two specific sections of the Defense of Marriage Act::

  1. Can a married couple who are legally married in one state demand benefits from another state? Section 2 of DOMA currently prohibits this.
  2. Can a married couple who are legally married in one state demand benefits from the federal government? Section 3 of DOMA currently prohibits this.

John Avarosis’ “incest and pedophilia” meme comes from the portion of the brief which was trying to answer the first question. Plaintiffs argue that DOMA’s Section 2 violates the “Full Faith and Credit” clause of the U.S. Constitution, the clause that requires states to recognize contracts entered into in other states. The DOJ argues on page 17 of the brief that there are already exceptions to that clause in contracts under certain circumstances, and that this exception already applies to marriages as well. Now read pages 17 and 18  (27th and 28th page of the PDF document) very carefully, especially this first paragraph:

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

Accordingly, Section 2 of DOMA hews to long-established principles in relation to the recognition of marriages performed in other States, and ensures that States may continue to rely on their own public policies to reject (or accept) requests to recognize same-sex marriages. The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA. Surely the Full Faith and Credit Clause cannot be read, in light of these established principles, to preclude a State from applying its own definition of marriage in situations involving same-sex couples, married elsewhere, who are domiciled within its own borders. That Clause clearly does not mandate such interference with “long established and still subsisting choice-of-law practices.” Sun Oil Co., 486 U.S. at 728-29.

Okay, did anyone happen to catch the sentence which says that same-sex marriage is the same as incest and pedophilia? Me neither. But John Aravosis thinks the whole first paragraph did exactly that. But pay very close attention to what this section is saying — and more importantly, what it is not saying.

The brief recognizes that different states have long had different laws regulating who can get married and who cannot. And because states already regulate marriages differently from one state to another, they are (according to the DOJ anyway) free to determine whether a marriage in one state is legal in another. And what are some of those differences? Kinship and age of consent. Let’s dive in.

Comparison to Incest?
Many states allow marriage between first cousins (New Mexico is cited in this brief), while others do not. Those that do, do not consider such marriages to be incest — it’s not in New Mexico. And in the case of Arizona, which the DOJ cites as a state that does not allow first cousins to marry, there is an exception: first cousins are allowed to marry in Arizona, as long as both are sixty-five years old or older, or if they can prove that one of them cannot reproduce. So even in Arizona, the prohibition has nothing to do with incest. If marriage between first cousins were incest, how would it magically stop being incest once both partners turn 65 or one partner become infertile?

Different jurisdictions have many different limits on kinship, and many have even provided exceptions to those limits. The DOJ brief says that very Catholic and socially-conservative Italy allows uncles to marry nieces. This is a new one on me, but if it’s true, then it means that Italy does not consider this to be incest. But guess what? Minnesota might be willing to consider uncle-niece marriages to be kosher as well. That state prohibits marriage between uncles and nieces, as well as between first cousins, “except as to marriages permitted by the established customs of aboriginal cultures.” So Caucasian nieces marrying their uncle is incestuous but Indians not? Of course not. But it does mean that if an Italian uncle-neice couple were to move to Minnesota and successfully claim to be from an “aboriginal culture” (i.e. “characteristic of or relating to people inhabiting a region from the beginning”), then their would be perfectly acceptable in Minnesota. Minnesota would not see it as incestuous.

And if Italian couples can’t claim to be aboriginal for Minnesota’s purposes, then Rhode Island can provide safe haven for at least a few of those Italian couples. That state has a similar religious exception for Jews.

But none of this has anything to do with incest. Many states have different definitions for incest verses definitions for who can marry based on kinship.  Rhode Island, with its many kinship prohibitions against marriage for its non-religious Jewish residents, has nevertheless repealed its incest law in 1989. In other words, there is legally no such thing as incest in Rhode Island. New Jersey doesn’t apply any penalties for incest if both parties are over the age of 18, but they do have all sorts of restrictions on marriage regardless of age. Kentucky prohibits first cousins from marrying, but that’s not because those unions would be prosecuted under Kentucky’s incest law. That law only defines incest as sex with “an ancestor, descendant, brother, or sister” By the way, if you asked most ordinary people on the street for a definition for incest, that is probably the definition they would most likely come up with. Not the convoluted, inconsistent definitions for allowable kinships our states have come up with.

These statutes are as much about what states allow as they are about what states prohibit. Citing a litany of the many differences in the degrees kinships that states allow is not the same as invoking incest. The DOJ brief simply makes no such comparison, nor does it declare any sort of “equivalency.” It merely states, very briefly and not very completely, what the situation is right now in terms of allowable kinship.

Comparison to Pedophilia?
Age is another common restriction placed on marriage, and there are similarly wide variations on how different jurisdictions define age of consent for marriage. Most set that age of consent at 18, although you have to wait until you’re 21 to marry in Puerto Rico without parental consent. So does that mean that a Puerto Rican groom marrying a 20-year-old Puerto Rican bride in the state of New Jersey is engaging in pedophilia? Of course not. But that’s the standard you’d have to set if you wanted to claim that this brief compares same-sex marriage to incest.

What’s more, all jurisdictions allow exceptions with parental consent, with many going as low as 15 years of age. A few states allow even younger ages to marry under certain circumstances, and none of this is considered pedophilia either. California, for example, has no lower limit as long as a court goes along with it. And yet, back in Puerto Rico, if you’re a man you can’t get married if you’re under 18 even if you do have your parents’ blessing (for women, the age drops to 16 with parental consent; all bets are off if the woman is pregnant.)

Want more proof that this has little to do with pedophilia? How about this: states often set the age of consent for marriage very differently from their age of consent for sex. Where most states set the age of consent for marriage at 18, the age of sexual consent is most commonly set at 16 years if age.

And many provide for even lower ages of consent for sexual activity when the two partners are close in age. In Alaska, that age can go as low as 13 under certain circumstances. Same with  Connecticut, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, North Carolina, Pennsylvania, South Dakota. In Arkansas, Louisiana and Nebraska, that limit can even go as low as the age of 12. Some states appear to have no such lower limit when the two partners are within a few years of each other (Maryland and New York, for example). But no matter how much perfectly legal, non-pedophilic sex those exceptionally young lovers may be having, they can’t get married under those states’ marriage laws.

Still not convinced that this isn’t about pedophilia? Well then how about this: in every one of those states which provide exemptions to their age of sexual consent when the two sex partners’ ages are close to each other, those exemptions completely disappear under those same states’ age of marital consent statutes. The purpose for setting an age of consent for marriage has less to do with statutory rape or pedophilia, and more to do with trying to keep young adults or teenagers from rushing into marriage when both are very young — a much more common situation than that of old geezers trying to legally take advantage of children.

No comparison
Most states right now regulate marriages according to three criteria: age, kinship and gender. It’s not “equating” same-sex marriages with incest and pedophilia to simply point out that these are, right now, the three primary areas of regulation. Furthermore, pointing out the many ways in which states define allowable kinships in marriage is not “equating” same-sex marriage with incest. And describing all the ways in which different states allow people of different ages to marry is not “equating” same-sex marriage with pedophilia.

But that is all that the DOJ brief did, and as far as this particular topic is concerned, the brief stopped there. It simply described the state of the law as it is right now. Whether it is an acceptable state of the law (the DOJ apparently thinks so) or not (and I most definitely do not think it’s acceptable where same-sex marriage is concerned) is a completely different matter.

(And by the way, in case there is any confusion, I strongly disagree with the DOJ when they claim, for example, that marriages between first cousins go unrecognized in many states. They cited the case of New Mexico allowing first cousins to marry but Arizona prohibiting it. But I know for a fact that if first cousins marry in New Mexico and move to Arizona, the Arizona Department of Revenue isn’t going to bring them up on charges of perjury if they checked the “married” box on state tax returns. States do, by default and as a matter of course, recognize marriages from other states even when those marriages would not be legal in their own states. Only same-sex marriages are singled out for special scrutiny and treatment.)

Offensive Nevertheless
Okay, so the brief doesn’t say same-sex marriage is equivalent to incest or pedophilia. Big deal. It’s still patently contemptuous of gays and lesbians even without that. For one, the DOJ lawyers seem to think that gay people, deep down, don’t really exist. How else can one explain this (page 27)?

Even viewing the right asserted here as the right of gay and lesbian couples to marry, DOMA does not directly or substantially interfere with the ability of anyone, including homosexuals, to marry the individual of his or her choice. …Hence, under DOMA, gay and lesbian couples suffer no greater interference with their ability to obtain recognition of their marriages, either in the States where they were wed, or elsewhere.

That could only be true under one condition: that homosexuals can “marry the individual of his or her choice” as long as that individual is of the opposite sex. In other words, just because I’m gay, it doesn’t mean I can’t settle down with a nice Catholic girl (or a nice religious Jewish niece if I lived in Rhode Island) and have that marriage go unchallenged virtually everywhere I go. That sort of argument is precisely the stuff we’ve heard from some of our more unhinged anti-gay opponents.

And then there’s this bit of creative “logic” on page 27-28:

…gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

Got that? We’re not denied anything, we’re just not allowed the extra stuff (and obligations) that heterosexual couples get when they’re married. In the eyes of the Justice Department, that’s not discrimination. Maybe women who are denied promotions aren’t discriminated against because they still have a job; they just don’t get the extra pay and perks the employer gave to a lesser-qualified man.

But even if it is discrimination, that’s okay too, according to the Department of Justice (page 2):

Thus, by defining “marriage” and “spouse” as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.

That’s right. Congress can choose to deny its “scarce resources” to a very tiny proportion of married couples just because it wants to. Never mind that those same married couples pay taxes just like everyone else.

It doesn’t end  there. There’s so much more in this brief that’s risible, like the continual reference to a “new form of marriage,” a phrase that may as well place scare-quotes around the word “marriage” when referring to same-sex couples. And to add insult to injury, the brief then contrasts that “new form of marriage” to what it calls “traditional marriage,” which, inexplicably, is likely meant to preclude the traditional and biblical examples of brother-sister marriages, non-consensual marriages and plural marriages, although it doesn’t explicitly say so.

This brief’s contemptuous tone is breathtaking. LGBT advocates are right to denounce it and to encourage very direct and vigorous avenues of protest to make our anger known. I’m glad to see the LGBT community call Obama and the Democratic Party on the carpet for this, and I hope that many more join them.

It’s Important To Speak The Truth
I started this web site because I wanted to expose our opponents when they distort the written record. That is the driving force behind so much of what we do here at BTB. But if I see similar examples among our own advocates — including those advocates who do wonderful work otherwise — how can I remain silent?

This definitely isn’t the pathway to mega-blogger status. I’m probably going to be called self-loathing, an appeaser, an Uncle Tom or an Obama apologist — you name it. Or, just as likely, this post may be ignored. But that’s okay. I’d much rather speak the truth than repeat talking points intended solely to inflame. The “incest and pedophilia” meme is the latter, not the former, and it’s been seriously bugging me all week. There are plenty of reasons to be outraged by this DOJ brief, but no matter how you slice it, it just doesn’t say what many of our leading advocates claim it does.

I like John Aravosis a lot. He has been unparalleled in covering the ongoing developments surrounding the Obama administration’s reactions to the outrage this brief has generated. No one else has stayed on top of this story the way he has.

But it was Karl Rove who perfected the art of manufactured outrage, and it reflects poorly on us when we deploy the same tactic. If there’s anything we should have learned from the Bush administration, it’s that such behavior will weaken our position, not strengthen it. It’s time we gave it a rest and be outraged over what’s really there.

DOJ Reportedly To Meet With LGBT Groups

Jim Burroway

June 19th, 2009

In the wake of the nationwide anger being expressed over the Justice Department’s insulting court brief defending the so-called “Defense of Marriage Act,” the Obama administration has begun to react with some very limited, short term steps to try to assuage that anger. On Wednesday, President Barack Obama signed a Presidential Memorandum directing federal agencies to adopt policies to treat their LGBT employees on equal footing with their other employees. (That memorandum, however, doesn’t include key employment benefits like health care or retirement, which are prohibited by federal law.) The White House has also directed the Census Bureau to determine changes in its procedures to allow same-sex unions to be counted.

Both steps however are very tiny steps, and they have done little to quell the outrage over the DOJ’s brief. That anger continues to threaten the Democratic National Committee’s LGBT fundraiser slated for next week.

Now The Plum Line blog is reporting that the Justice Department has scheduled a private meeting with major LGBT groups for next week:

Tracy Russo, a spokesperson for Justice, confirmed the meeting to me, after I posted below that top gay rights lawyers were miffed that administration lawyers had rebuffed their requests to meet and discuss ongoing litigation involving DOMA.

At the meeting — which hasn\’t been announced and is expected to include leading gay rights groups like GLAD and Lambda Legal — both sides are expected to hash out how to proceed with pending DOMA cases.

The Justice Department is due to file another brief by June 29 in a lawsuit filed by Gay and Lesbian Advocates and Defenders in Boston\’s Federal District Court on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. That DOMA challenge, Gill v. Office of Personel Management is considered a much stronger suit than Smelt v. United States, which the recent controversial DOJ brief addressed.

I don’t know whether LGBT groups would be permitted to weigh in on Gill v. OPM specifically. But if this meeting really does happen, it does appear to be a sign that the Justice Department may try to head off the kind of missteps it made with its Smelt v. US filing.

And if that’s the case, then it appears that the Obama Administration may have begun to recover its sense of hearing. But the only lesson I think we can safely draw from all of this is to keep shouting.

Barney Frank Was Against The DOMA Brief Before He Was For It

Jim Burroway

June 18th, 2009

There are three openly gay representatives in the U.S. Congress. As of Tuesday, we saw statements from two of the three — Rep. Tammy Baldwin (D-WI) and Rep. Jared Polis (D-CO) condemning the Justice Department’s brief defending the “Defense of Marriage Act,” and we wondered when Barney Frank (D-MA) was going to issue an official statement.

Yesterday, it appeared that Frank was going to add his voice in condemnation to the brief as well. He told the Boston Herald:

“I think the administration made a big mistake. The wording they used was inappropriate,” Frank (D-Newton) said of a brief filed by Obama\’s Department of Justice that supported the Defense of Marriage Act. … “I\’ve been in touch with the White House and I\’m hoping the president will make clear these were not his views,” Frank said.

But by the time Frank got around to releasing an official statement, he had a change of heart:

“When I was called by a newspaper reporter for reaction to the administration\’s brief defending the constitutionality of the Defense of Marriage Act, I made the mistake of relying on other people\’s oral descriptions to me of what had been in the brief, rather than reading it first.  It is a lesson to me that I should not give in to press insistence that I comment before I have had a chance fully to inform myself on the subject at hand.”

“Now that I have read the brief, I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric.  There are some cases where I wish they had been more explicit in disavowing their view that certain arguments were correct, and to make it clear that they were talking not about their own views of these issues, but rather what was appropriate in a constitutional case with a rational basis standard – which is the one that now prevails in the federal courts, although I think it should be upgraded.”

This, of course, is the same brief which suggests that DOMA doesn’t discriminate against gay people because gay people are free to marry anyone they want, as long as its someone of the opposite sex. And besides, the brief continues, if it did discriminate, that’s okay too. Maybe Congress just wanted to save a few bucks in Social Security benefits, and that’s a good enough reason right there — never mind that we pay the same taxes into the fund just like everyone else.

But then, Barny Frank also doesn’t want anyone to spoil the DNC fundraiser for next week. “There are a lot of people who aren\’t boycotting. I think it\’s a mistake to deny money to the DNC,” he told the Boston Herald.

But Frank does point to another lawsuit filed by Gay and Lesbian Advocates and Defenders in Boston’s Federal District Court behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. That GLAD lawsuit, Gill v. Office of Personnel Management challenges only Section Three of DOMA, the section which bars the federal government from recongizing same-sex marriages or providing benefits to same-sex couples

Gill v. OPM is considered a much stronger suit than Smelt v. United States, which the recent DOJ brief addresssed. The Justice Department is required to answer GLAD’s lawsuit by June 29. We’ll be watching that one very closely.

Meanwhile, Frank, along with three other Democrats and four Republicans will introduce a revised Employment Non-Discrimination Act next week in Congress. Unlike last year’s bill, this one includes transgender people in its coverage.

Baldwin, Polis Statements On DOJ’s DOMA Brief

Jim Burroway

June 16th, 2009

Tammy Baldwin (D-WI) and Jared Polis (D-CO), two of the three openly gay representatives in Congress, have released statements reacting to the Justice Department’s brief defending the so-called “Defense of Marriage Act.” First up, Rep. Baldwin (no link):

Last week the Department of Justice filed a motion to dismiss a lawsuit challenging the constitutionality of DOMA.  I was profoundly disappointed by this action, particularly coming from this administration.  I still take President Obama at his word that he is committed to the repeal of DOMA.  I also recognize that he cannot do it alone.  Congress has the responsibility on its shoulders to pass legislation that would give the opportunity to the President to keep his word and ensure that all married people, including those in same-sex marriages, enjoy the same rights under federal law.”

Rep. Polis:

I was shocked and disappointed to learn that President Obama chose to defend DOMA in federal court, especially given his campaign promise to call for a full repeal of DOMA. My sadness turned to outrage when I read the Justice Department\’s brief that not only defended this hurtful law but seemed to embrace it. Comparing my loving relationship with my partner, Marlon, to incest was unconscionable coming from a president who has called for change.

Since this filing, I have called on the President to issue a statement or give any sign that would clarify his position and am disappointed in his lack of reply.

I am a proud Democrat, as are many in the GLBT community, and I believe we must hold our leaders accountable.  The Obama Administration made a HUGE mistake in the DOMA brief. If they keep making mistakes like this, they risk losing the support of the GLBT community forever, although I do not believe we are at that point yet.

President Obama needs to honor his promise to repeal this law and end its needlessly divisive and harmful impact on our nation.  I again call on him to work with us in Congress to help pass legislation, ending this hateful and divisive law.

As the New York Times editorialized yesterday, “busy calendars and political expediency are no excuse for making one group of Americans wait any longer for equal rights.”

A statement from Rep. Barney Frank (D-MA) is conspicuously missing.

If Not Now…?

Jim Burroway

June 15th, 2009

As I said earlier, the age old question — If not now, when? — is no longer a rallying cry but a taunt to the Obama administration on it’s poor handling of LGBT issues. The New York Times joins the taunting with an editorial about the Obama administration’s bungling over its insulting DOMA brief:

The best approach of all would have been to make clear, even as it defends the law in court, that it is fighting for gay rights. It should work to repeal “don\’t ask, don\’t tell,” the law that bans gay men and lesbians in the military from being open about their sexuality. It should push hard for a federal law banning employment discrimination. It should also work to repeal the Defense of Marriage Act in Congress.

The administration has had its hands full with the financial crisis, health care, Guantánamo Bay and other pressing matters. In times like these, issues like repealing the marriage act can seem like a distraction — or a political liability. But busy calendars and political expediency are no excuse for making one group of Americans wait any longer for equal rights.

Rachel Maddow and Howard Dean: Obama’s DOMA Defense Is “A Huge Mistake”

Jim Burroway

June 15th, 2009


Jim Burroway

June 13th, 2009

The Obama administration’s brief defending DOMA in Smelt v. United States is incredibly tone deaf, particularly when contrasted against the California Attorney General’s brief filed in response to Perry v. Schwarzenegger. The DOJ brief which says gays can marry anyone they want as long as it’s someone of the opposite sex is not just an insult to gay people, but an insult to the legal system’s collective intelligence. And the argument about holding costs down on Social Security and preserving tax revenue would be laughable if this were a Sacha Baron Cohen movie.  Unfortunately, these are the underpinnings of the legal arguments brought before the august Supreme Court on behalf of one of the smartest Presidents to hold the high office. How could this have happened? David Link offers one answer:

There is something deeper here, though.  Obama is comfortable with the cliché political rhetoric of gay equality, but this brief shows his understanding doesn\’t go a centimeter deeper.  Or (most generously) that his Attorney General knows only the words and not the tune.  To someone who understands gay equality as little more than a set of slogans and bromides, this brief might not have looked particularly offensive.

That, at least, is the most generous understanding I am willing to indulge – that the brief was written and/or edited by civil servants with an anti-gay inclination, and reviewed by political staff who know no more about gay equality than what they read on the President\’s website.

CA Attorney General Brief: Prop 8 Violates 14th Amendment

Jim Burroway

June 13th, 2009

What a contrast between the California Attorney General and the U.S. Department of Justice. On the same day in which the Obama administration filed a brief before the U.S. Supreme Court defending the so-called “Defense of Marriage Act, California Attorney General Jerry Brown filed a very different brief in Perry v. Schwarzenegger, the Prop 8 challenge brought by Ted Olson and David Boies.

In the brief filed on behalf of the State of California (PDF: 128KB/11 pages), Brown notes that:

The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California. Cal. Const., art. XX, § 3. The United States Constitution is the “supreme law of the land.” Taking from same-sex couples the right to civil marriage that they had previously possessed under California\’s Constitution cannot be squared with guarantees of the Fourteenth Amendment. Accordingly, the Attorney General answers the Complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution.

The complaint filed by Olson and Boies (PDF: 140KB/11 pages) is broken down into forty-nine paragraphs. The response by the Attorney General addresses each of the numbered paragraphs in the original complaint. The response begins with a stipulation that California’s Domestic Partnerships are not equal to civil marriage and therefore violates the Fourteenth Amendment to the U.S. Constitution”

In response to paragraph 1 of the Complaint, the Attorney General admits that in November 2008 California adopted Proposition 8; that Proposition 8 amended Article I of the California Constitution by adding section 7.5 which provides that “[o]nly marriage between a man and a woman is valid or recognized in California;” and that the effect of Proposition 8 is to deny gay men and lesbians and their same-sex partners access to civil marriage in California and to deny them recognition of their civil marriages performed elsewhere. The Attorney General admits that lesbians and gay men and their same-sex partners may form domestic partnerships in California pursuant to California Family Code sections 297 through 299.6, and that such domestic partnerships are not equal to civil marriage, and that this unequal treatment denies lesbians and gay men rights guarantees by the Fourteenth Amendment to the United States Constitution.

…In response to paragraph 7 of the Complaint, the Attorney General admits that Proposition 8 denies same-sex couples the right to civil marriage in California, and that it therefore violates the Fourteenth Amendment to the United States Constitution.

…In response to paragraph 23 of the Complaint, the Attorney General admits that California\’s domestic partnership law gives same-sex couples many of the substantive legal benefits and privileges that California civil marriage provides; that the domestic partnership law does not permit the marriage of same-sex couples; and that the California Supreme Court has noted at least nine ways in which statutes concerning marriage differ from corresponding statutes concerning domestic partnerships.

Brown describes the reasons that gays and lesbians should be treated as a suspect class deserving of equal protection:

…In response to paragraph 20 of the Complaint, the Attorney General admits that sexual orientation is a characteristic that bears no relation to a person\’s ability to perform or contribute to society and that the sexual orientation of gays and lesbians has been associated with a stigma of inferiority and second-class citizenship, manifested by the group\’s history of legal and social disabilities.

Brown also invokes Loving v. Virginia, the 1967 U.S. Supreme Court ruling which struck down laws banning marriage between people of different races:

In response to paragraph 35 of the Complaint, the Attorney General admits that the United States Supreme Court found in Loving v. Virginia, 388 U.S. 1. 12 (1967), that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

The brief then addresses the Due Process claims:

In response to paragraph 38 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution on its face.

…In response to paragraph 39 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process clause of the Fourteenth Amendment to the United States Constitution on its face; and that by denying civil marriage to gay and lesbian same-sex couples that it affords to heterosexual opposite-sex couples, the California Constitution denies gay and lesbian couples and their families the same dignity, respect, and stature afforded families headed by a married couple.

And the Equal Protection claims:

In response to paragraph 42 of the Complaint, the Attorney General admits that Proposition 8 restricts civil marriage in California to opposite-sex couples; that gays and lesbians are therefore unable to enter into a civil marriage with the person of their choice; that the California Constitution treats similarly-situated persons differently by providing civil marriage to opposite-sex couples, but denying it to same-sex couples; that domestic partnership under California law is available to same-sex couples, but is not the equivalent of civil marriage; that even if domestic partnership were the substantive equivalent to civil marriage, it would still be unequal to deny civil marriage to same-sex couples because, as recognized by the California Supreme Court in In re Marriage Cases, domestic partnership would carry with it a stigma of inequality and second-class citizenship; that under the California Constitution, gay and lesbian same sex couples are unequal to heterosexual opposite sex couples; and that article I, section 7.5 of the California Constitution discriminates on the basis of sexual orientation.

This is an exceptional brief, absent all of the pernicious anti-gay ramblings of the Obama administration’s brief before the U.S. Supreme Court. After reading the DOJ brief yesterday, this one was a breath of fresh air. Look at these two briefs side-by-side. It will be clear that only one was written by a “fierce advocate” for the Constitutional principles of Due Process and Equal Protection.

More Reactions to Obama Administration’s Defense of DOMA

Jim Burroway

June 12th, 2009

People are justifiably furious over the Obama administration’s DOJ brief filed with the Supreme Court defending DOMA. Here’s Pam Spaulding:

This is a President who said he is a “fierce advocate” for our rights. This doesn’t look much like an advocate, it looks more like an enemy pulling the pin on the grenade and tossing it at us. While this may not be the perfect test case for DOMA, the Obama administration, in its defense of the Act, has filed a brief that is a roadmap for every fundnut anti-gay argument against the right of same-sex couples to marry.

Andrew Sullivan:

There’s a completely decent reason to keep DOMA in place for the time being, especially in the federal courts right now – where bad precedents could wound us in the future. But to file an actual brief re-stating some of the worst and most denigrating arguments against gay civil equality is just bizarre. They could have argued for a narrow ruling or kept the “reasonable” arguments to a minimum. What they did – without any heads up to any of their gay supporters and allies – is unconscionable. Citing incest precedents? Calling gay couples free-loaders? Arguing that our civil rights are not impinged because we can marry someone of the opposite sex? Who on earth decided that that was a great idea?

…I’m baffled by this, I really am. The content of this brief is a massive political error from an administration that is making it impossible for its gay supporters to stay supportive. What’s next? A Clintonian political ad boasting of these arguments?

John Aravosis, when he’s not mad at others for not pushing the incest meme. Sorry, John. I love you and admire your work, but we disagree on that point. But not on this:

Today is the 42nd anniversary of Loving v. Virginia, the Supreme Court case overturning Virginia’s ban on inter-racial marriages. The Obama people, working for the product of an inter-racial marriage, sure have an eye for irony.

Chris Geidner at Law Dork:

Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees*, such a lawyer needn\’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn\’t add gratuitous demeaning statements into the legal brief she files.

Unlike the Obama Administration\’s brief filed in the Don\’t Ask, Don\’t Tell case turned away by the Supreme Court this week, last night\’s filing in Smelt v. United States goes too far.  It\’s offensive, it\’s dismissive, it\’s demeaning and — most importantly — it\’s unnecessary.  Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.

…Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:

DOMA does not discriminate against homosexuals in the provision of federal benefits.

Another lawyer, Dale Carpenter at the Volokh Conspiracy:

More bluntly put, the Obama DOJ is saying that DOMA doesn’t discriminate against gays and lesbians because they are free to marry people of the opposite sex. No “homosexual” is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There’s a nice boy across the street. It’s identical in form to the defense of Texas’s Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn’t discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it’s the official constitutional position of the Obama administration.

…My point here is not to claim that the DOJ’s arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there’s little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance is there.

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a “fierce advocate” for gay and lesbian Americans. When does that part start?

David Link at Independent Gay Forum:

It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a “form” of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money.  There are some respectable arguments in this motion, and this kind of disrespect is offensive.

Chris Crain:

The people in the Justice Department writing this brief made so many discredited and ridiculous arguments for DOMA, I hope these were really intended to help the court see the fallacy of DOMA to persuade the court to strike it down. Otherwise my only other conclusion is that the Obama White House has thrown us overboard.

Dan Savage:

Barack Obama’s record on gay rights so far: disturbing, unsound, false, discriminatory, damaging, nonsensical. Before today you could argue that the Obama administration was too busy with the economy and the war and health care to focus on making good on his campaign promises to gays and lesbians, that Obama simply didn’t have the time to take up our issues. But you can’t make that argument anymore. The Obama administration has the time to take up gay rights issues—but only, it seems, to do harm.

I can’t take my vote back. And I’m not sure I would if I could. But I sure as hell would like to have my money back.

And Andy Towle:

Happy Stonewall anniversary everybody!

Reactions To Obama Administration’s Defense of DOMA

Jim Burroway

June 12th, 2009

Reactions to news that the Obama administration is defending the so-called “Defense of Marriage Act” against a constitutional challenge before the U.S. Supreme Court are pouring in fast and furious. We go first to the Human Rights Campaign:

[HRC President Joe Solmonese said,] “Mr. President, you have called DOMA ‘abhorrent\’ and pledged to be a fierce advocate for our community.  As we approach the 40th anniversary of Stonewall, it is time for you to use your leadership to translate these principles into meaningful action.”

HRC also has grave concerns about the arguments that the Administration put forth in this case, arguments that simply do not reflect the experiences that LGBT people face or the contributions that they make. The Administration\’s brief claims that DOMA is a valid exercise of Congress\’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.  The brief further claims that DOMA is a “neutral” federal position on same-sex marriages, and permits the states to determine on their own whether to recognize same-sex marriages. The most alarming argument, grounded neither in fact nor in law, reads as follows:

[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.

“Same-sex couples and their families are not seeking subsidies,” said HRC President Joe Solmonese.  “We pay taxes equally, contribute to our communities equally, support each other equally, pay equally into Social Security, and participate equally in our democracy.  Equal protection is not a handout.  It is our right as citizens,” he said.

From Rea Carey, Executive Director of the National Gay and Lesbian Task Force Action Fund:

“DOMA is and has always been an immoral attack on same-sex couples, our families and our fundamental humanity. This law has only served to discriminate against Americans and belittle our nation’s heralded values embracing freedom, fairness and justice. The Task Force Action Fund demands President Obama and Congress immediately repeal this hateful law, which has left a moral scar on our nation and its worthy pursuit of equal justice for all.

“Unfortunately, the malicious and outrageous arguments and language used in the Department of Justice’s marriage brief is only serving to inflame and malign the humanity of same-sex couples and our families. This is unacceptable.

“This ugly chapter in our nation’s history must come to an end now with the repeal of DOMA.”

From Executive Director Geoff Kors of Equality California:

We are outraged the Obama Administration filed a brief defending the discriminatory Defense of Marriage Act — a law Obama promised to repeal when running for President. It is unacceptable that he is defending DOMA instead of supporting its repeal as unconstitutional. And the justification that Congress has the right to deny one minority equal benefits as a way to save money is truly offensive. We not only call on President Obama to order the Justice Department to file a supplemental brief reversing its position and instead urging the repeal of DOMA, but we also demand the president demonstrates that he is the ‘fierce’ advocate he once claimed to be by publicly calling for the end to all discrimination against LGBT Americans — including the immediate repeal of this law so same-sex couples legally married in their home state receive the same federal benefits and protections as opposite-sex couples

From a broad coalition of advocacy groups (no link yet):

We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act against Smelt v. United States, a lawsuit brought in federal court in California by a married same-sex couple asking the federal government to treat them equally with respect to federal protections and benefits. The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.

We disagree with many of the administration\’s arguments, for example that DOMA is a valid exercise of Congress\’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government\’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” 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 corresponding same benefits that married heterosexual taxpayers receive. 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. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.

When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.

American Civil Liberties Union
Gay and Lesbian Advocates and Defenders
Human Rights Campaign
Lambda Legal
National Center for Lesbian Rights
National Gay and Lesbian Taskforce

And from PFLAG:

Parents, Families and Friends of Lesbians and Gays (PFLAG) National expressed deep disappointment and strong opposition to the Department of Justice\’s recent arguments regarding the Defense of Marriage Act (DOMA) in the dismissal of a lawsuit filed on behalf of a gay couple who married in California.

“Since DOMA\’s enactment in 1996, PFLAG has vocally opposed this blatant and malicious law, which enables legal discrimination against our gay and lesbian loved ones and denies them the right to protect their families and receive equal treatment under the law,” said Jody M. Huckaby, executive director of PFLAG. “We are deeply offended by the DOJ\’s recent arguments and alarmed by the hurtful language that further denigrates our families and friends.”

“PFLAG continues to urge President Obama to explore options to repeal this immoral and unethical law that leaves our families and friends unprotected and unequal. DOMA hurts our families and friends by denying them more than 1,100 federal benefits legally recognized married couples currently receive from the federal government. When families are hurt, communities are weakened and all of America suffers. In the name of basic equality and fairness, we ask that the Administration fulfill its commitment to advancing equality for LGBT Americans by acting immediately to overturn this law,” Huckaby concluded.

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.


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