As 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 This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress.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.]
Popularity: 91% [?]
Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, 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
I love how the new brief expressly and forcefully rejects the childrearing rationale, which, if I remember correctly, was the primary basis for the Washington Supreme Court’s and the New York and Maryland Courts of Appeals’ rejections of SSM
Really annoying how the administration is trying to have it both ways, but I guess that’s what we have to expect at this point.
“for those MANY” who agree with you??? Nice one, Chris. You oughta be a lawyer. But, thanks for not quoting the shameful rationalizations of Obama’s effective Godfather Larry Tribe this time.
BOTTOMLINE: A few roses planted in forty acres of bullshit!
We’re being played…and this time TWO DIFFERENT WAYS. First, it’s no more true that they have to defend every existing law than it was the last time they claimed it to cover their Rick Warrenites-appeasing asses!!!
SECOND: This “we have to defend the law crap” is as much about DADT as it is DOMA…about reinforcing their DISHONEST runaround about not issuing an Executive Order to freeze discharges by pretending they have no choice when, in fact, THEY KNOW another law passed by Congress TRUMPS DADT: 10 United States Code § 12305—“Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement,and Separation.”
And for any of those who might think the “bad” part of it [when, actually, it's all bad in the end] might have been written by holdover career attorney hired by George Bush pere and, yes, devout Mormon, W. Scott Simpson, as the last one apparently was, note, AGAIN, the name of his boss, Tony West, Assistant Attorney General, director of the DOJ Civil Division…and close friend of Obama after raising millions for him during the campaign….is at the top of this brief just as it was at the top of the previous gay legal lynching brief.
West was an attorney in San Francisco during the Prop H*TE battle and records show him not giving a dime to defeat it.
STOP GIVING MONEY TO THE DNC UNTIL THEY STOP DEFENDING DOMA AND DADT AND START ACTIVELY ATTACKING THEM IN CONGRESS…AFTER THE COMMANDER-IN-CHIEF TAKES ALL OF 10 SECONDS TO SIGN AN EXECUTIVE ORDER FREEZING DISCHARGES UNTIL REPEAL HAPPENS!
If you stop giving money to the DNC, why not do something useful with it ? – send it to mainefreedomtomarry to help defend same-sex marriage in Maine? This is one we can and should win, but massive amounts of money are flowing in from the usual anti-gay sources. A victory in Maine would bolster our efforts across the country in the legislatures and courts as well as at the ballot box.
What exactly are the president’s options when a government lawyer does something he disagree with? Fire them? There are still ongoing criminal investigations of members of the Bush administration for firing attorneys because they disagreed with how those attorneys were/were not prosecuting specific cases. Is this any different?
I think all are underestimating President Obama’s planning. Recall that he is a constitutional lawyer. He knows the only way to really put down laws like DOMA and keep them from returning is to get them ruled on by the courts, possibly by forcing the issue to the Supremes.
I don’t know about the federal system, but here in Vermont the Attorney General has no obligation to defend a law that he doesn’t like.
I’m betting that Mr. Holder’s statement that he has to defend DOMA is just B—S—-.
Actually, I believe that Attorney General Sorrell would say differently.
In addition, and as discussed an awful lot here over the past few months, the Department of Justice does have more of an obligation to defend federal laws than does a state attorney general to defend state laws.
Please stop flashing the Executive Order as a Draw Four card, this isn’t UNO. EO should be a last resort
EO a last resort? Why? If Truman hadn’t realized he’d get nowhere with legislation and issued an EO to racially integrate the military, it might STILL be segregated.
An EO freezing discharges until repeal would not only be ENTIRELY legal under 10 USC 12305 but end what Obama himself referred to as weakening national security.
If the core, motivated Repugs [versus the 59% of Repug voters who support lifting the ban] didn’t hate gays so much that’s ANOTHER thing they’d be attacking him for: aiding and abetting the terrorists by continuing to fire Arab linguists, etc., etc.
Michael,
There was no legislation segregating the military that Truman’s Executive Order 9981 (July 26, 1948) had to supersede. Moreover, Congress specifically defeated legislative efforts toward segregation. In May 1948, Sen. Richard B. Russell (D-GA) attached an amendment to the Selective Services bill then being debated in Congress. The Russell amendment would have granted draftees and new inductees an opportunity to choose whether or not they wanted to serve in segregated military units. Russell’s amendment was defeated in committee. In June 1950 when the Selective Services Law came up for renewal, Russell tried again to attach his segregation amendment, and again Congress defeated it.
At the end of June 1950, the Korean War broke out. The U.S. Army had accomplished little desegregation in peacetime and sent the segregated Eighth Army to defend South Korea. Most black soldiers served in segregated support units in the rear. The remainder served in segregated combat units, most notably the 24th Infantry Regiment. The first months of the Korean War were some of the most disastrous in U.S. military history. The North Korean People’s Army nearly drove the American-led United Nations forces off the Korean peninsula. Faced with staggering losses in white units, commanders on the ground began accepting black replacements, thus integrating their units. The practice occurred all over the Korean battle lines and proved that integrated combat units could perform under fire. The Army high command took notice. On July 26, 1951, the US Army formally announced its plans to desegregate, exactly three years after Truman issued Executive Order 9981.
(You’ll sometimes find rabid Republicans who insist that Truman didn’t really desegregate the military, and that Eisenhower should get the credit because he was president when the military actually achieved complete racial integration.)
As you can see from this capsule history, an Executive Order given to a reluctant military, even where Congress’s wishes are not to the contrary, can take a long time and a crisis situation to implement. If Obama issued an EO specifically as a runaround on DADT, there will be a lot more resistance in the military than if it happens with a Congressional repeal of DADT.
I can appreciate the Administration’s attempts to support the Rule of Law, and its advances in sympathy towards gay rights are palpable. That said, it fails on two major fronts:
1) It treats matters of basic human rights as policy distinction. Lawrence v. Texas proved that the govt has no interest in discriminating against gays and violates the 14th Amendment in doing so.
2) It failed to mention dubious Constitutionality of DOMA that was obvious when Clinton signed it. California is facing those very issues with its ex post facto Prop 8. DOMA denies the Full Faith and Credit Clause, supercedes the right of states to define marriage in violation of the 10th Amendment, and creates a Dred Scott-style dilemma in our mobile society where you are married in one state and not in another.
Legally married couples are denied Federal benefits that the state claims they should have. A couple in MA cannot file joint taxes or get SS benefits, even though the State of MA has told the Federal govt that they are legally married, just as a heterosexual couple is. Federal employees are discriminated against as they are denied spousal benefits that their Iowa marriage license should entitle them to. Meanwhile, if you move from VT to NY and back, has your marriage been nullified.
The President played duck & cover on this one, and yet still wants credit for advancing gay rights. The very least he could do is acknowledge that this legislation was based on antigay bigotry and not on sound legal arguments.
AxelDC,
The majority of the Court in Lawrence specifically disclaimed that it was talking about equality with regard to marriage: “It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence was carefully limited to the specific laws that prohibited sodomy between two consenting, unrelated adults and criminally punished such sodomy. There is a huge difference between the government’s TAKING AWAY your liberty by putting you in jail for having sex, and the government’s GIVING you a particular legal status (marriage, incorporation, etc.). You have much stronger Constitutional rights in retaining your liberty against unjust criminal laws than in obtaining new benefits and responsibilities under civil laws.
“DOMA denies the Full Faith and Credit Clause, supercedes the right of states to define marriage in violation of the 10th Amendment, and creates a Dred Scott-style dilemma in our mobile society where you are married in one state and not in another.”
(1) DOMA no more “denies” the FFC, which applies to states’ recognition of one another’s acts, than anti-miscegenation laws in states did for years before Loving v. Virginia. Loving didn’t force Virginia to recognize marriages from DC that would be illegal in VA; it forced Virginia to perform interracial marriages itself. Full Faith & Credit is never mentioned in the decision.
(2) States are totally free to define marriage for themselves. Have you missed all these states that now define marriage in a sex-neutral manner? What DOMA does is protect those states that have a more limited definition of marriage (”only between a man and a woman”) from being forced to recognize the more expansive definition other states may have.
(3) Again, we had people married in one place but not another for years before Loving v. Virginia. We continue to have people whose marriages are legal in one state but not another. First cousins can marry in Vermont, but not in Texas. Rhode Island allows a particular Jewish sect to have uncles marry nieces. States have different laws about the age at which one can marry. Same-sex marriage is not the first time in American history that we’ve had different marriage laws in different states.
Who/what is the intervening party that has defended DOMA by asserting the law advances governmental interests in protecting the raising of children by their biological parents?
I just want to know when the president will tell the people that my relationships are not comparable to incest and pedophilia. That, in my opinion, was more the damage than anything in the defense of DOMA earlier.
Defending the law is one thing, but defending the law with a lie (GLBT relationships are somehow similar to incest)is WRONG.
So when is he going to clear my name? When do I get to tell my critics that Obama’s administration doesn’t believe I’m like a pedophile or an incestuous person after all?
That’s not what the initial brief said, and we’ve had that debate about 20 times here at Law Dork.
Well, now you can take your complaints to the DOJ’s new LGBT liaison. Maybe he can explain, in a way you’ll comprehend, why the initial brief was not comparing your relationship to incest and pedophilia.
I read the brief. There was no mention of that in the original brief.