On Monday, the Department of Justice issued a follow-up brief in the Smelt v. United States case, with the Obama Administration clearly stating that they do not support the 1996 Defense of Marriage Act (DOMA) and would seek a repeal. That said, the apparent constitutionality of the law means that the Department of Justice will continue to defend DOMA in order to dismiss legal challenges. For how long this duality will last before something gives, it is hard to say.
When the opening brief was filed earlier this year, gay rights activists were (rightly) angered that not only did the previous brief affirm the constitutionality of the law as was expected, it also argued that DOMA was of financial and sociological benefit to America.
Basically, it had Bush written all over it, but was now coming from a very different source: an Administration that had claimed to be a “fierce advocate” of gay rights.
The follow-up brief, however, clearly states its case differently:
“With respects to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal… [the administration] 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.”
The rest of the paragraph is edifying in that it draws on a good deal of legal history (Lawrence v. Texas) as well as established medical and psychological opinion on LGBT people, their unions, and their child rearing abilities. This is, to my knowledge, the first time that an American government has made such an overt declaration that supports the rights of gay couples in parenting, and in this way the brief accomplishes some good, setting a tone at the very least.
The brief also does something quite marked. The federal government is defending DOMA in the Smelt v. United States case on the basis that, even though the couple in question, Arthur Smelt and Christopher Hummer, claim that DOMA damages them by not allowing them to do such things as file joint tax returns or have access to joint health-care provisions, the couple have never attempted to claim for these benefits and therefore were not harmed by their lack:
“Plaintiffs lack standing… because they nowhere allege that they have actually been denied any rights or benefits under the laws of another state resulting from the refusal of that state to acknowledge their marital status…”
A clever approach. But to what quarter will lawyers go in defending DOMA against the Massachusettes challenge where couples have been denied federal benefits in a state where gay marriage has been legal for around five years? It seems that the Administration may be mindfully reducing the ground on which a defense of DOMA can be mounted, but, then again, this might be too optimistic.
Alternatively, if you want the main highlights of the brief the folks over at Americablog have done a great breakdown.
The reply brief seems pure sentiment, but what it does seem to signify is the slow erosion of a terrible, reactionary law. The original brief was perhaps so badly received because of its nature. It was a motion for dismissal in which the administration seemed to prematurely go out of its way to not only state the constitutionality of DOMA, but to argue that it should be upheld because DOMA was good for America, where as the reply brief seems almost apologetic in its defense.
Critics have already called the document a watered down version of the original brief with no real substance of its own, and that the Obama Administration is still defending an anti-gay policy. I’d disagree on the last point, because the language of this reply brief is markedly different, but, in essence, a pragmatic view suggests that the brief has limited use. In fact, it seems to be more of a re-declaration of policy, and that the “fierce advocate” in President Obama is still, well, advocating.
There is also one last point that keeps resurfacing in discussion. Is the President really required to defend DOMA as a constitutional law, especially in light of the fact that DOMA, by the Administration’s own admission, is a discriminatory policy? There seem to be a wealth of diverging viewpoints. Have your say below.
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