DOJ Reply Brief in Smelt Filed

DOJSealAs noted elsewhere this morning, the Department of Justice filed its reply brief (pdf) in Smelt v. United States today.  Additionally, the White House issued a statement from President Obama regarding the filing:

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  This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress.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.

The reply brief itself begins with a similar statement:

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.

Smelt, DOJ Reply, at 2.  It goes on, in the body of the argument:

Plaintiffs’ equal protection and due process claims raise several issues, all of which were addressed in the United States’ motion to dismiss.  As established in the government’s opening memorandum, federal courts have unanimously upheld the constitutionality of DOMA.

Smelt, DOJ Reply at 5.  The DOJ then provides a reference to those cases.

Later, it refutes — through citation to medical society policies and Lawrence v. Texas – an intervening party that is attempting to defend DOMA by asserting the law advances governmental interests in protecting the raising of children by “both of their biological parents.”  Specifically, DOJ concludes:

[T]he 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.

Smelt, DOJ Reply at 6-7.  This matters and is a great pro-LGBT equality argument never advanced previously by the federal government.

Those who assert that the Obama Administration did not even need to file a brief will be dissatisfied with the brief because it essentially incorporates the earlier arguments into this reply brief and continues to defend DOMA as a legal matter.  But, for those many people who believe that the government, in a situation such as this, does have a responsibility to defend the law, this brief makes clear the distinction between opposing a policy and defending a law.

From the brief itself to Obama’s statement and in light of the other changes being advanced by the Administration, I continue to believe that the original DOJ Smelt filing was made without the full appreciation (or knowledge) by higher-ups.  I do think that the uproar following its filing has changed the approach of the Administration, and, for that, the debate was worthwhile.  This filing and statement show a keen awareness of and sensitivity to that impact, while maintaining a clear principle to defend a law that repeatedly has been found to be constitutional.

[UPDATE: For those, reasonably, asking if this brief in any way "takes back" the earlier, problematic arguments made in the previous DOJ Smelt brief, it does not.  But, what it does do is put that brief in context of the Administration's opposition to the policy aims of DOMA.

In order to get a full picture of the Administration's changed approach on defending DOMA, we will need to wait until mid-September, when the Justice Department files its Motion to Dismiss in Gill v. Office of Personnel Management et al., the Massachusetts GLAD case.  I previously discussed the Amended Complaint filed in the case by GLAD earlier this month.  The government's response to the Complaint is due by Sept. 18.]

[FURTHER UPDATE: Check out my follow-up here regarding LGBT parents and a pending adoption case.  Thanks to Patrick at The Daily Dish, Rod at Rod 2.0, Dennis at AfterElton, Dale at The Volokh Conspiracy, Amanda at Think Progress and Joe at Joe.My.God. for the links.]

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Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect,, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.