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Loading...Obama Administration Admits DOMA is Discriminatory
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.
To read the full brief, please click here.
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.
Take Action: Sign this Care2 petition calling for a repeal of DOMA.
Read more: civil rights, defense of marriage act, doma, doma brief, gay rights, lgbt rights, president obama
Photo used under the Creative Commons Attribution License, with thanks to Carbon NYC.
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38 comments
+ add your ownJim,
I understand your reluctance to people quoting scripture. Heck - I'm annoyed by it myself sometimes. But the statement "The Bible has no bearing on our laws, and indeed is specifically excluded from having any bearing on them" is just simply false.
The Supreme Law of the United States is our Constitution. It's very purpose is dervived from princples that were borne out by scripture. Let's take a look at the 1st paragraph of our beloved Constitution:
"We The People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Justice, Tranquility (Peace), Defense, Welfare (Well-being), and Blessings of Liberty (Freedom); These all form the very purpose for which our constitution was ordained. All of them have a Biblical basis!
Justice: Central to the very character of God himself. Justice is one of the major themes found throughout scripture. Indeed, Justice required the Sacrifice of Jesus Christ - God in the flesh - to reconcile us to Him.
Peace: Another huge theme. The 1st 4 books of the New Testament are called the "Gospel of Peace" (Ephesians 6:15)
Freedom: Contrasted often with Bondage, this is nearly the whole point of it all!
Alas, I'm at the char limit again.
Well, nice talking to ya.
And would it be possible just once to have a discussion about our laws without quoting scripture?
The Bible has no bearing on our laws, and indeed is specifically excluded from having any bearing on them. One could conclude that while the Bible has no bearing, Charlotte's Web could if we so chose. But not the Bible, absent an amendment and ratification by 38 states, minimum.
It's a non sequiter.
Jim
DOMA is a bad law. Period. And it didn't take a genius in the Obama Aministration to see it as patently discrimintory. The sky is also blue, BTW. Maybe someone will admit to that.
And whether the court ultimately recognizes DOMA as constitutional is moot in my opinion. Let's not forget that in 1896 the "Supreme" Court upheld that segregation on trains was constututional, essentailly that saying Blacks weren't entitled to equal protection under the 14th Amendment.
Fast forward to August 24th, 2009. A lower court it would appear contends, as does DOMA and anyone who support it, that Gays are not entitled to equal protection under the 14th Amendment. We, and the ruling court, should be ashamed of our country in its treatment of our Gay brothers and sisters.
Jim (Straight but not an asshole about it.)
To Joseph W:
Funny and entertaining comment! But a couple of inaccuracies and logical fallacies should be pointed out:
"God hates gay people but embraces incest!" Well, actually no on both counts. If God hates gay people then he would hate his own image (Gen 1:27). Therefore, unless gay people are not human, God surely doesn't hate them. As for incest, why is incest wrong in the first place? We could agree that it is wrong today because we know the dangers of genetic diseases in the potential offspring, but for the 2nd generation of human beings from creation - such genetic limitations were not present. Therefore, incest in Cain's generation was not only morally acceptable, it was necessary for the furtherance of the human race! Future generations, however, had to worry about recessive gene disorders and thus we have restrictions placed on incest (Leviticus 18:6). Incidentally, you claim that Cain had sex with both his mother AND sister. Is this an arbitrary claim or do you have justification for it? A plain reading of Genesis 1-4 seems to infer only the latter possibility - and even then not directly.
"According to the Bible, God supports infidelity" I know you were trying to be humorous, but this too is illogical. Immoral actions recorded in the Bible do not automatically indicate God's acceptance of them. Were this true, even the first act of disobedience would be acceptable. More to come… I’m at the character limit…
To: Joseph W: Part 2:
So where was I? Oh yeah, infidelity. There are all kinds of examples of infidelity throughout the Bible. This doesn’t mean that God supports infidelity. Especially in light of Genesis 3 that teaches that human beings are a fallen race. But, for the sake of argument let’s presume that God does support infidelity. Then we have a clear contradiction in Exodus 20:14 (Do not commit Adultery), and Matthew 6:28, which is, in turn, in a major contradiction with Numbers 20:19 (God is not a man that he should lie). So, if God supports infidelity, then he has lied. If he has lied, then the entire Bible is no more than any other book of fiction. In essence, if your statement “According to the Bible, God supports infidelity” were true, it would be false, and therefore it must be false.
I have other issues that you brought up such as unicorns, dinosaurs and the shallow gene pool that I don’t feel the need to bring up right now. I also am well aware that all that I have written above (and in Part 1) presume the truth of the Bible, which is something I claim without apology. I am not asking you to believe as I do, far from it, but if you are going to attack the Bible based on the Bible like you have done, then you must already presume that it is true and I therefore claim the right to peacefully argue from that basis.
DOMA is just another means to divide people into classes of the dreaded OTHERS whom we fear and loathe. Sexuality is sexuality. One procreates, the other recreates (plays). Little difference. Love is love, romantic love is romantic love. But, sadly our institutions serve as rigid entities until, as a people, we see that it behooves us to transform the definition of such divisive and confining forms. If the human mind determines reality, we must constantly examine our mentality and rethink our reality. That is creativity and, thus, progress and evolving into a being that can now care for one another and, then, care for other beings of creation. Don’t get stuck in the past and your preconceived notions of right and wrong, good and bad. LIVE rather than be dead. For example, gays and lesbians add no more to our rising population of seven billion: undeniably a good thing since humans in our fight over resources and power, cause all the destructive conflict on this Earth. If we were harmonious, then the more of us the merrier, eh? Well, most likely not …
Crazy idea ...
But first, an observation: bad laws are as much a part of US history as good ones, the Supreme Court notwithstanding. Harry S. Truman, a student of history, and a champion of rights of every man or woman born (not to mention one of our finest presidents) signed the Loyalty Act, requiring a loyalty oath of all government employees (essentially denying them the right to believe as they wish, even if such belief favored communisim.) It was patently unconstitutional, yet it, because of the attitude at the time, went unchallenged by the Court.
Myriad other shames stain our otherwise proud history. And sadly, will, no doubt again.
No question; our treatment of homosexual Americans will shame us yet again; if not now, eventually.
Now back to DOMA: shame on us. It defends no institution. It merely limits privelege to certain of us. It's a bad law. Remove it, and the absurd privelidge. (read: get rid of the unique status, married or not.) It's not that Gays lack rights; it's that Straights have rights to which they're not entitled. Nothing in our constitution recognizes married individuals as being better than anyone else, regardless of how much or little it may be desired.
IMHO,
Jim
I find this morning's news especially encouraging, personally and for those in the GLBT community I know and respect:
After hours of back and forth between members, the Evangelical Lutheran Church in America decided Friday evening (August 21, 2009) to accept noncelibate clergy members and lay leaders who are in "lifelong" and "monogamous" same-sex relationships.
Some members argued prior to the vote that the change would fly in the face of religious teachings.
"Brothers and sisters, I ask you, before you dig yourselves deeper into this hole, if you are so absolutely certain that these behaviors are not sinful that you are willing to place yourselves and this church at the spiritual risk that comes from encouraging sin," said the Rev. Steven Frock of the Western Iowa Synod.
Among those on the other side was Alan Wold of the Northern Illinois Synod. "If according to some I am going to be in err(or) for supporting this... Let me err on the side of mercy, grace, justice, and love of neighbor. Let me err on the side of gospel, which makes all things new."
So much for all the fundie talk about apostate churches and judging them if they DON'T discriminate in the same ways!
joseph - thank you for making me laugh - that was an outstanding post!
i remember constantly wondering about the very points you made whenever i was sitting in church and they were making me feel a dime size because i wasn't out there breeding away in a marriage and doing all the christian stereotypical homemaker role - i wanted to jump up and say but where did all of us come from? from the first family fornicating with each other!
thank you, marty, that's the crux of this WHOLE thing - insecurity - and you said it beautifully. what's that verse, god has not given us a spirit of fear, but of power, and love, and a SOUND mind..
there are many that need to meditate on that very verse.
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