Bil Browning

Obama administration to defend DOMA in court

Filed By Bil Browning | June 12, 2009 6:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Barack Obama, Defense of Marriage Act, DOMA, federal court, gay marriage, marriage equality, same-sex marriage, Smelt vs United States, Supreme Court

Updated at the end of the post

The Department of Justice filed a motion asking a federal court to dismiss a challenge to the Defense of Marriage Act (DOMA) today. President Obama ran for office with a promise to repeal DOMA and LGBT activists are understandably upset with the administration's defense of the discriminatory law.

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.

While the language is stark and deeply offensive from the administration of our "fierce advocate," is there a sound strategy behind the motion to dismiss?

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

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Marriage, marriage, marriage. Wake me up when gay men start talking about something else.

Midtowner | June 12, 2009 7:11 PM

I'm curious if this was argued on an old principal and not authorized by Obama (I know)...
It just seems in direct opposition to what weve heard unless he fully intends on Civil Unions "supports full civil unions and federal rights for LGBT couples and opposes a constitutional ban on same-sex marriage." -

Can we say "Bait and Switch" aint holding my breath on this issue so time to move on to better things and get some real work done.
Politics is a contact sport with no rules!

He got what he wanted. He's president. He knows he doesn't need to honor any 'promises' he may have made. Its not like he owes anyone anything.

At best, he'll make the same promises again right before the next electrion saying he couldn't do anything because of "..." and he'll do it if he only can become president again.

Where's the Obama-rimming enthusiast-- the lovely Crawford-- in all of this?

Bill Perdue Bill Perdue | June 12, 2009 8:32 PM

On the contrary, everything is perfectly clear. In spite of the claims of the Obama Administration this isn't a legal question or one that depends on constitutional duties. That's a smokescreen used by the DoJ and the Obama Administration in general to cover their increasingly hostile attacks on our agenda and their now much more open bigotry.

This is above all a political question and one which conclusively places the Obama Administration and the Democrats as a whole in the enemy camp. They can no longer pretend to be ‘fierce defenders’ of anything but mass murder in Iraq and Afghanistan and welfare bailouts for the rich. Unlike the more honestly bigoted Republicans, the Democrats including Obama, his Cabinet and the Congressional Democrats Congress are now openly fierce enemies.

Describing backstabbers like Obama a poster at Queerty once said ”Democrats on the other hand are like pet snakes, feed em, keep em warm, but dont trust em that much because just when you think they’re your friends…”

Obama and the Democrat leadership as a whole, like the Republicans, are right centrists. (I’m not speaking of those who simply blundered and voted for them but the owners and leaders of that party.) They were right centrist before the election and now they’re moving, as we on the left predicted, to the right.

When will the people who misled some in the movement into voting for Obama or McCain begin to draw lessons from their mistakes?

People who bungled and voted for Obama or the Democrats got McCain and the Republicans in drag. With Democrats like Obama, Biden and the Clintons who really needs Republicans?

They gotta have somebody to blame there Bill hate to say it for once you and I are on the same page of an issue. Now aint that just scary!
Politics is a contact sport with no rules!

Wake up Queers! Obama is no friend of ours. He is the typical, lying politician and not some savior as many think. He is making a calculated move to throw us under the bus al la Bill Clinton. I say Fuck that! What choices to we have? How about not fawning all over him and every other Democrat who have done nothing for us. They are all liars who triangulate in order to get elected, and they have triangulated that we are expendable. Hold them accountable for when they fail and lie to us, and last but not least stop being Obama and Democrat boot lickers. I am tired of being told to be patient that he will repeal DOMA and DADT his next term. The way I feel about him now he will have to get elected without this faggots support next time!

Don't you know-criticism of Obama on this blog will cause people to call you racist and tell you your "pink sheets" are showing?

I voted for Obama in the primary after much research and agony. However, I just can't imagine Hilary allowing this brief to be filed.

I expect more from a constitutional law professor.


Regarding Hilary Clinton - DADT and DOMA were both passed under Bill Clinton. And she wasn't exactly a silent mom/housewife all that time.

You write: "I expect more from a constitutional law professor." What would that be, exactly? In all seriousness, I'd like to know - what should a constitutional law professor do in this case? I'm genuinely curious - I'm reading all this commentary about the legal aspects of move to dismiss and how Obama shouldn't have done x or y, but no one is clear on what they think he *should* have done.

There are plenty of ways to write a motion to dismiss. From my reading, and I only read through it once pretty quickly, there are legitimate arguments regarding standing. The Government actually has a pretty good shot at prevailing at that alone without getting to the actual merits of the complaint.

But, no. The administration just even further, imploring not only public policy arguments, but offensive public policy arguments.

There are actually some public policy arguments you can make that are relatively benign on this subject. The government chose not to do so.

And actually, previous administrations had argued that current laws WERE unconstitutional, so the argument posited that they HAD to argue this viewpoint is ridiculous.

diddlygrl | June 12, 2009 9:43 PM

I agree with Monica, Hohumm, wake me when we get to something important to talk about.

Yeah it's unfair, it sucks, and all that, but it was also unfair that, even though Austin has a non-discrimination policy that includes gender identity, I was still discriminated against in seeking employment.

You want your marriage, I wanted a job, tough ain't it.

I think we both want to be considered constitutionally legitimate, don't we?

You really think this is just about marriage?

You really aren't interested in having rights are you?

Okay, if you know so much about the subject, then explain to me and dittygirl what "rights" we will get if DOMA is repealed, specifically having to do with allowing her to get a job?

Bill Perdue Bill Perdue | June 13, 2009 3:00 PM

Patrick, I think there are several factors at play here. They’re all connected to the rightward drift of the Democrats and the fact that a few LGBT Democrats and 'professional' liberals are going with that flow.

First, the whole question of same sex marriage rights has been under concentrated attack for over a decade by the right wing. It began when rightwinger Clinton championed DOMA to trawl for bigot votes. Under rightwingers Bush and Rove the attacks escalated as DOMAS spread to most of the states. Rove made pandering became an art form and Obama and Josh Dubois are now painting by the numbers. Obama hinged his campaign on building a bigot base of 'faith support groups', and galvanizing them using religion as a cover to attack SSM - "gawd's in the mix".

The ferocity of attacks by the rightwing Democrat and Republican parties makes some shy away from the fight. But as I said they are a distinct minority. The growing GLBT backlash to the viciousness of right wingers like Clinton, Bush and Obama is testament to the fact that most in the LGBT communities will fight back.

Secondly when Barney Frank and Nancy Pelosi, without a demur from Hillary Clinton or Obama, decided to gut ENDA they deliberately set out to split the GLBT communities. They had some successes. They created a Frankenstein version of ENDA and a deep division in our communities. Some LGBT 'leaders', namely the sellouts at HRC, joined in deafening excluding transpeople from Barney Franks sellout version of ENDA. That in turn created a feeling of deep sectarian hostility which you see in the remarks of MonicaH and diddlygrl and in the remarks of gay men who agree with exclusion.

Obama is pigheadedly opposed to same sex marriage. Some, whose allegiance is to Obama and not to the LGBT movement, openly oppose same sex marriage rights. That often takes the form of denouncing SSM as an issue limited to rich, Euroamerican gay males. They seem to forget that it has broad support in all parts of our communities and that much of that support is a reaction to right wing attacks. These same Obama supporters disingenuously counterpoise SSM it to other parts of our agenda denying that we can fight for more than one thing at a time. They’re also adamantly opposed to a campaign of persistent mass marches and actions for ENDA, hate crimes laws and to repeal Clintons DOMA and DADT because those tend to focus attention on the right wing nature of the Democrats and Obama.

As Obama and his supporters allemande to the right and as the GLBT movement becomes more energetic and militant around questions like SSM and ENDA we’ll see more division. It’s not something to be feared if it leads to political clarity.

Let's try again. Ready? The public are against gay marraige but support domestic partnership. Politicians are not saints. They don't waste political capital on people who only pick fights they can't win. Get it? Just forget it, and go back to feeling self righteous.
I just can't guess what bulls--t we'll demand next.

The public was against ending slavery

The pulic was against integration

The public was against interracial marriage

Isa Kocher | June 12, 2009 10:04 PM

i am old enough to recognize when i have been used by a cute straight guy who needed something.[the good old fashioned "grab your ankles queer" always makes me suspicious]

The brief is simply horrendous...denying rights to us because it would cost money, then claiming that we are not denied any rights because we can marry someone of the opposite sex and obtain those rights, then comparing the legal validity of outlawing incest to outlawing same-sex marriage?

It is the official stance of the Government of the United States that my marriage is legally equivalent to an incestuous union. I am the legal equivalent of an incest perp....

I am on my way to Kennedy for a red-eye flight to Europe, work related. How in hell do I defend the administration's stance on this to other attorneys that I work with?

The language of the brief is incendiary and indefensible. It will come back to haunt us in the future, used by our enemies against us. And it was prepared with our tax dollars..

eastsidekate | June 12, 2009 11:49 PM


Seriously, I think Bil may have a point that one might wish to debate the merits of this particular court case. However, the DOJ brief wasn't an intellectual discussion about constitutional law. It reads as a poorly reasoned screed about why same sex marriages (and homosexuality itself) are contrary to the state's interests, and generally indefensible. There's no way that the brief should have gone anywhere close to where it did. I'd say flipping us the bird is putting it mildly. Somebody at the DOJ obviously has serious problems with gay people. Even if you're willing to give Obama the benefit of the doubt on his advance knowledge of the DOJ's position (I'm not), it's the president's duty to correct the situation immediately (clean house, apologize like crazy, and fight DOMA tooth and nail). I don't think there's a chance that will happen.

Bil, and others,

As you know, I'm not for marriage, gay or otherwise. But I'm seriously unclear about a couple of things:

These two men filed to appeal DOMA. Is Obama, the President, *not* supposed to then challenge the appeal? Has there ever been a situation where a sitting President has actually turned around, in a similar situation and said, to the effect, "Yeah, sure, go ahead, I/we won't defend against the lawsuit?"

What parts of the language of the brief, precisely are so incendiary? Again, I'd like to know that from a legal point of view. That particular charge seems to flying around the web but, based on my initial reading, there's no specific *language,* but there are inferences being drawn by many. I'd like clarification on this.

And, please, before someone goes on about any support for Obama you might construe on my behalf - note that I'm to the left of the Greens, so don't look at me...I'm not here to defend Obama; I really would like some answers to my questions.


Thanks, eastsidekate!

I looked at it quickly, just before I saw your comment - I also noted the second commenter's notes seemed to make more sense than the original blog, but that's just on a first read. I'm ploughing through it all right now...I'd like to know what you and/or others think.

I'd still like to know - what could Obama have done differently to make folks happy? Has any sitting President ever *not* challenged something like this?


Apparently there is precedent for not defending laws that the administration views as egregious and unconstitutional. I've scanned some blogs and seen a few references.

Honestly I'm not surprised and most of the claims are "rational" in the context of a brief defending a law. Your not going to say its blatantly unconstitutional when your trying to defend its constitutionality. The bit about the budget is somewhat rational because you have (as i understand it) to show how it is advantageous to keep the law. The rest is a statement of facts painful as they maybe. Under federal statute GBLT peoples are not considered a protected class which are given greater defense against discrimination. Therefore we have very limited protections. Finally despite the fact that we find it ludicrous there is no right to marriage for peoples of the same sex anywhere in federal law. Now some of the language was harsh and perhaps could have been stiffened its a pretty straight forward document that tells us what we already know.

Please be aware I'm not apologizing for the document or Obama's actions. I'm simply stating that over all its pretty rational for what it is. I on a personal level am disappointed in Obama across the board. I elected him expecting a moderate leaning liberal and he has so far shown himself to be a centrist. Who doesn't seem to have the courage to support his convictions. Furthermore I quite frankly don't think his administration cares about GBLT rights. He knows we cant go to the Republicans and as of now third parties are not a real challenge to the two major parties. So we are stuck with the Democrats.

One more thing them I will be done. I think Obama will only support GBLT issues when its pushed through the legislative branch. This is a pretty common rhetorical tactic among conservative democrats and republicans simply because they know that the odds of us swaying the legislative branch to support our issues is nearly zero. If we do not pursue movement through the legislative branch they can accuse us of not supporting democracy and the democratic method and weasel out of any significant statement. I suspect Obama will ultimately embrace this rhetorical shift. To avoid our issues.

Sorry If this turned into a rant.

Re your question, Yasmin, about what President Obama could have done differently: If I were being asked, as a lawyer, what the administration should put in its brief, I would have suggested that they raise the standing issue, and leave it at that. Those arguments raise pretty powerful arguments that the suit should be dismissed on procedural grounds. However, the other arguments -- that DOMA is consistent with the concepts of equal protection and right to privacy -- make it clear that the Administration is going beyond a technical defense of DOMA as a standing federal law. (I note that Ameriblog indicates several examples of prior administrations arguing against standing federal law.) The Administration's argument is that DOMA is good public policy that upholds fair treatment of its citizens. They really didn't have to do that. That part is gratuitous from a policy standpoint, and contradicts President Obama's statements about seeking repeal of parts of DOMA.

Jillian is quite correct. This particular motion was written in the fashion of what in Europe is called a "self-proving brief;" they are supposed to over any possible argument to convince a judge of the merits. However, they are to include evidence and precedent, not innuendo.

It clearly uses what is simply bad law, such as putting the interests of the government in saving money higher than human rights, in direct conflict with the intent of the framers of the United States Constitution. On that basis, anyone could file to stop programmes that they disagree with on the basis of the government's penultimate interest in saving a buck. Shall we try to stop the loathed "Faith Based Intitiative" Funding using the Government's own argument?

But beyond that, it is a STATEMENT OF POLICY AND POSITION officially, publically, by the government of the United States.

The Executive Department of the Government of the United States has declared that the following positions are its' policy:

Same sex marriage is legally equivalent to incest

The need of the government to save money takes precedence over human rights

Gays and Lesbians are denied no rights traditionally attatched to marrriage since they are free to individually enter into heterosexual marriage.

This is a statemnt of policy and postion. These are the official views of the Government.

And these are horrific and unacceptable. Had one attatched "interracial" instead of same sex to these arguments, they would be accused of the worst kind of bigotry.

WIKI: The Defense of Marriage Act is designed specifically to "quarantine" same-sex marriage and prevent states from being required to recognize the marriage of same-sex couples in other states.

So, if your a same sex couple in a State that accepts that your good, but, if you travel beyond the boundaries of the protected State then the discriminatory DOMA is law and the can deny you your American right to equality. It all comes back to institutionalized religion and its destructive effect on freedom by its integration in the political process. It's always the Christians and their self-proclaimed right to deny others who do not follow their superstition the same rights they selfishly claim is theirs by divine ignorance. It just goes to show that religion is a political tool, doesn't matter where in the world you are there are tools out there to deny you equality.

It would appear that Obama is as big a tool as Clinton was!

I got this email from Equality California:

“Friday, California Attorney General Jerry Brown filed a brief in support of the federal lawsuit seeking to overturn Proposition 8 and restore marriage equality to California.

In stark contrast to President Obama's Justice Department filing a brief defending the discriminatory Defense of Marriage Act, California's Attorney General Jerry Brown today filed a brief in support of a federal challenge to Proposition 8. Equality California is extremely appreciative of the Attorney General's continued leadership in opposition to Proposition 8 and in support of ending discrimination against lesbian, gay, bisexual and transgender (LGBT) Californians.

Governor Schwarzenegger is expected to file his brief soon. We urge him to take the same principled stance and tell the Court that Prop. 8 violates the Constitution.

The time has come for all elected leaders to follow Jerry Brown’s example and stand up for equality for all Americans, regardless of sexual orientation or gender identity.

Equality California will continue our position of not endorsing or supporting any candidate for any level of public office who does not completely and unequivocally support total equality for our community.”

In solidarity, Geoff Kors, Executive Director,
Equality California

diddlygrl | June 13, 2009 7:11 PM

No matter what the Government says or does, no matter what laws it makes, until a majority of Americans are wiling to grant us equal rights then it won't matter whether there is a DOMA or not.

When and if DOMA is gone, then it will be a state's rights issue with all the one's with a marriage amendment claiming they aren't going to recognise a same sex marriage no matter what. Politicians are going to do what they do best, which is cave to public opinion, and you are still going to be screwed.

Equality will come in about two or three generations, just as soon as mine and the ones before and one or so afterward die off. Of course if the religious nuts gain control, forget it. It will be the closet, or wearing pink triangles for us then.

What was it the pope said? "I love the smell of burnt sinners in the morning, it smells like, piety."