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Obama: DOMA is discriminatory, but we'll defend it Anyway
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Obama: DOMA is discriminatory, but we'll defend it Anyway

by Mike Andrew - SGN Staff Writer

In a brief that satisfied neither marriage equality activists nor the Christian right, the Obama administration intervened again in Smelt v United States, a suit that seeks to overturn key parts of the federal Defense of Marriage Act (DOMA).

The Justice Department brief filed August 17 argued that Smelt should be dismissed by the US District Court, but added that the administration "does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal."

Arthur Smelt and Christopher Hammer were legally married in California prior to passage of Prop 8. They filed suit on March 9 this year to have DOMA and Prop 8 declared unconstitutional. While the suit was filed in a California Superior Court, it was referred to the US District Court because it includes claims against the US, challenging federal law.

The US Justice Department has filed two briefs in the case. The latest, coming in the wake of increasing impatience with the Obama administration by LGBT activists, was intended to clarify the administration's position on DOMA.

ADMINISTRATION BELIEVES DOMA IS DISCRIMINATORY
According to Justice Department spokesperson Tracy Schmaler, "The government's filing makes clear that the administration believes the Defense of Marriage Act is discriminatory and should be repealed. The president has said he wants to see a legislative repeal of DOMA because it prevents LGBT couples from being granted equal rights and benefits."

However, Schmaler went on to say that the Justice Department considered itself obligated to defend existing federal law, regardless of whether it is discriminatory or not.

"The Department's filing in this case upholds the rule of law in keeping with our obligation to defend federal statutes when they are challenged in court," she said in her statement. "The Justice Department cannot pick and choose which federal laws it will defend based on any one administration's policy preferences."

The White House also issued a statement Monday from President Obama: "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 right and benefits to LGBT couples under existing law."

In their August 17 brief, the Justice Department asked that Smelt be dismissed because the plaintiffs had not shown that they suffered any harm from the discriminatory effects of DOMA.

The Justice Department also argued that the federal government's interest in supporting the existing law passes the "rational basis" test.

"Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states," the administration's brief said.

JUSTICE DEPT. RULES DOMA DOES NOT PROTECT CHILDREN
In a significant development, however, the Justice Department explicitly tossed out the argument that DOMA is necessary to protect procreation and the interests of children.

"[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," their brief said.

This provoked immediate objections from the Christian right. Alliance Defense Fund attorney Brian Raum told the Baptist Press, "It is very disappointing that the [Justice Department] has rejected the idea that kids do best in homes with a married mother and father."

The Alliance Defense Fund (ADF) is a legal organization that typically intervenes against reproductive choice and marriage equality, or to defend individuals accused of hate crimes against LGBT people. Washington state attorney Stephen Pidgeon, who represents some of the principals behind Referendum 71, is connected with ADF.

Marriage equality activists took a measured view of the administration's new filing.

"I guess this is a step in the right direction," Gay blogger John Aravosis wrote on AmericaBlog.com. Aravosis had been a vocal critic of the Justice Department's previous brief in the Smelt case. That brief, filed June 12, seemed to put same-sex marriage on par with incest, pedophilia, and plural marriage, and provoked an uproar among LGBT activists.

Carisa Cunningham, director of public affairs for Gay and Lesbian Advocates and Defenders, told the Los Angeles Times that the brief's support of DOMA as constitutional is "simply wrong."

"But this administration," she added, "contrary to its predecessors, has acknowledged the reality that children are part of families with Gay and Lesbian parents and those children can grow up as well adjusted as anyone else. That's a very important acknowledgment, and it is also important legally."

Similar sentiments were expressed by National Center for Lesbian Rights Executive Director Kate Kendell in a statement August 17. "We appreciate that the Department of Justice has acknowledged that DOMA is a blatantly discriminatory measure that must be repealed," Kendell said.

"We remain disappointed that the Department of Justice continues to defend DOMA and to argue that laws that discriminate based on sexual orientation do not raise serious constitutional problems," she added.

However Smelt is decided at the US District Court level, it may be appealed to a Circuit Court of Appeals and, if necessary to the US Supreme Court. Several challenges to the constitutionality of DOMA have been referred to the Supreme Court, but the court has so far declined to hear any DOMA cases.

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