The 54-page document traces the history of the federal Defense of Marriage Act (DOMA) passed by Congress in 1996 at a time when states and their citizens were just beginning to address the legal status of same-sex marriage.
The case was originally filed last year in California State Court before heading to federal court. It claims violation of a number of federal rights including the right to privacy, the right to travel and the right of free expression under the First Amendment.
The government's filing said the suit would fail under each of those grounds. While it addressed each argument, it claimed the suit should be dismissed for lack of standing by the plaintiffs to bring the claim in federal court.
As I've dug around on this story this morning, one thing has become perfectly clear: Nothing is perfectly clear. While the administration might have good strategic reasons for asking the court to dismiss this case, it wasn't communicated to the community. Why would the administration defend it to start with?
My thoughts and a complete copy of the motion after the jump.
This seems like a no-win situation all around. The plaintiffs have filed previous federal and state court cases attempting to overturn DOMA and have received no support from LGBT organizations. In fact, Equality California asked an appeals court to dismiss a case the couple had lost in 2004.
Smelt and Hammer are represented by lawyer Richard Gilbert, who runs a small Santa Ana law firm unaffiliated with the major gay rights groups. Gilbert is dismissive of his many critics, who have for years studiously filed narrowly tailored legal challenges to be fought exclusively in state court.
"This is the only way to call the question," Gilbert said. "The other attorneys have been fighting the wrong fight in the wrong courts."
The Smelt case is broader than the Boies-Olson challenge to California's same-sex marriage ban, filed Friday on behalf of two California same-sex couples. The California Supreme Court on Tuesday upheld Proposition 8.
Gilbert says the legal landscape has changed dramatically now that the California high court has allowed the marriage ban to remain but has recognized the estimated 18,000 couples, including his clients, who married while such unions were legal.
But some gay rights advocates are still wary and say the Smelt case is not the way to go.
"It's an enormous intellectual exercise against the biggest legal opponent in the country - the United States government," said Lambda Legal's Jennifer Pizer.
A similar challenge to federal same-sex marriage law was brought in Massachusetts in March by the Gay and Lesbian Advocates and Defenders, but Pizer said the Boston group is being supported by big law firms.
Gay organizations were quick to condemn the DOJ's motion as "egregious," but none actually stated support for the court case. A common press release issued by the American Civil Liberties Union, Gay and Lesbian Advocates and Defenders, Human Rights Campaign, Lambda Legal, National Center for Lesbian Rights, and the National Gay and Lesbian Taskforce stayed the course.
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 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.
The motion, filed late Thursday, argued the case of Arthur Smelt and Christopher Hammer does not address the right of gay couples to marry but rather questions whether their marriage must be recognized nationwide by states that have not approved gay marriage.
"This case does not call upon the Court to pass judgment ... on the legal or moral right of same-sex couples, such as plaintiffs here, to be married," the motion states. "Plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions."
"DOMA does not address whether a same-sex couple may marry within the United States," the motion says. "Instead, it permits the citizens of each state to decide that question for themselves."
Marriage advocates have downplayed Smelt and Hammer's court cases for years now complaining that they're badly focused and ineffective. From what I can see of this case, they're not actually suing to overturn DOMA. They're seeking a ruling mandating that their California marriage should be recognized in all other states and that's all they're seeking other than the federal relationship recognition. They are not seeking marriage rights for all couples; only recognition of their own marriage.
If Obama is as committed to repealing DOMA as he says he is, he could have requested that the DOJ not defend against the lawsuit. Presidents Reagan, Clinton and Bush all filed briefs opposing federal laws that they thought were unconstitutional; Obama, a constitutional scholar, has said repeatedly that DOMA is constitutionally unsound.
Which leads me to wonder, if Obama hadn't defended the case would it have allowed same-sex marriage nationwide? With his oft-repeated mantra that he supports "traditional marriage" but favors "relationship recognition," is the President trying to keep his political ducks in a row? He can curry favor with the more conservative Democrats he'll need for health care and economical votes while getting a not well-written court case dismissed that wouldn't provide the ends he sought? After all, the Perry v. Schwarzenegger case filed by super-attorneys David Boies and Theodore Olson will be working it's way through the courts soon.
Could Obama be waiting for that case? The rumor mill also had Obama overturning DOMA via executive order sometime this month as a "Pride present," but I'd also heard he'd overturn Don't Ask, Don't Tell; march in a Pride parade; hold a Pride celebration at the White House and many, many other silly rumors.
Whether he is waiting for a better opportunity with a smarter case or has flipped our community the bird, it doesn't seem as if our leadership was prepared for the hostile motion filed today.
And on the anniversary of Loving v Virginia, it's a really bad gift to give for Pride. Separate is not equal and the arguments the Department of Justice uses come straight from that time period of racial segregation.
So what do you think? Did he flip us the bird or is he calculating his odds?
UPDATE: Continuing my line of thought that this lawsuit wasn't the best vehicle to bring about the change we seek, I sent these questions to both NGLTF and HRC: "The release took the administration to task for the wording in the motion and called for Obama to end DOMA. But it didn't say that the org supported the actual lawsuit. Does HRC/NGLTF think the lawsuit was a good idea that should go forward? In other words, would the org be worried if the lawsuit is thrown out and another advances with a better shot at succeeding? Does HRC/NGLTF see this as a strategic decision by the administration?"
The reply from HRC's Brad Luna:
We can't speculate on the Administration's strategy; that's for them to answer. We are not involved in this litigation, and have joined with other LGBT groups in a statement encouraging community members to resist filing federal lawsuits at this time. That said, the issue is not limited to whether Arthur Smelt and Christopher Hammer succeed in court. It is about ending the discrimination that our families face, something that we know that the President supports but that he has yet to act on.
From NGLTF's Inga Sarda-Sorenson:
For a concrete legal perspective, we encourage you to follow-up with our community's legal organizations.
With our own orgs unwilling to push this lawsuit because they consider it strategically unsound and a poorly written suit, why are we shocked the administration would seek to get it thrown out of court?
----- Obama's Motion to Dismiss Marriage case