By Lisa Keen
Keen News Service
The honeymoon is over. The gloves are off. The anger is fierce.
In a somewhat obscure gay marriage case in California, the U.S. Department of Justice submitted a brief June 11 that many LGBT activists are decrying as a betrayal of President Barack Obama’s promise to work to repeal the Defense of Marriage Act.
And yet a prominent, widely respected constitutional law professor urges caution, arguing that the particular lawsuit that triggered this latest controversy is “extremely vulnerable” on a number of legal grounds.
The case is Smelt v. U.S., one that has been brewing since 2004 and which gay legal activists openly criticized as premature and ill-conceived at the time. That criticism has not changed with the lawsuit’s new incarnation, filed last December.
What has changed is the president, his appointees to the Department of Justice and the expectation on the part of many in the LGBT community that the Obama administration would mount only a perfunctory defense of DOMA, given that President Obama has vowed to work to repeal the statute.
But instead, the DOJ, under Obama appointee Tony West, an Assistant Attorney General, has filed a brief vigorously defending DOMA as a reasonable and necessary law.
“The brief is appalling,” said lawyer Lorri Jean, head of the Los Angeles Gay & Lesbian Center. “If that is an example of Obama’s ‘fierce advocacy’ on our behalf, I’d rather he go advocate for someone else. This brief went far beyond anything that might have been ‘required’ of the administration. I worry that this is a revealing glimpse into the true sentiments of this administration. It feels like a betrayal of all he has promised our community.”
All four national gay legal organizations, plus the Human Rights Campaign and the National Gay and Lesbian Task Force, issued a joint statement Friday, criticizing the brief in uncharacteristically strong terms. The statement said the organizations are “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.”
“When President Obama was courting lesbian, gay, bisexual and transgender voters,” said the statement, “he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.”
Kate Kendell, head of the National Center for Lesbian Rights, called the DOJ brief “shocking and unsettling.” Geoff Kors, head of the Equality California group that fought Proposition 8, said his organization is “outraged.” Former Clinton White House staffer Richard Socarides called the brief a “veritable kitchen sink of anti-gay legal theories, that it seemed expressly designed to inflict maximal damage to our rights.”
The White House response
Responding to the criticism, the White House issued a brief statement June 12, saying: “As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
It also “authorized” Office of Personnel Management Director John Berry to tell The Advocate and attendees of an LGBT Pride celebration in Washington, D.C. on Sunday that the administration is still committed to repealing DOMA. Berry defended the DOJ brief, saying the president has to enforce all federal laws “that have been enacted appropriately and that he has inherited.”
“It would be wrong for me or any of our community to advise him to lie or to shirk his responsibility,” said Berry. “He’s doing his job. He has made clear that he stands for the repeal of DOMA. It will be part of this administration’s agenda to accomplish that act. We ought not waste energy and angst attacking him when we should be focusing the energy and effort on getting 218 votes in the House and 60 votes in the Senate, and that’s where we ought to target the energy and the strength of this community and this president is with us, this is our agenda and it’s his agenda.”
Just five years ago, then-U.S. Senator Obama called DOMA an “abhorrent law,” said that its repeal is “essential,” and that he shares the community’s “sense of urgency” about securing equal rights for gay couples.
DOMA, he wrote, in a Q&A with Windy City Times, a Chicago gay newspaper, “is an effort to demonize people for political advantage and should be resisted.”
Obama did resist it for some time. He said during his campaign for the U.S. Senate that he opposed DOMA in 1996. In a 1996 questionnaire that state senate candidate Obama filled out, and which Windy City Times rediscovered this year, Obama said “I favor legalizing same-sex marriage and would fight to efforts to prohibit such marriages.” As a candidate for the U.S. Senate in 2004 and later, as a candidate for president, he said he did not personally support same-sex marriage but believed gay couples with civil union certificates should be treated the same as straight couples. In an interview with The Advocate in April 2008, candidate Obama said he was “very interested in making sure that federal benefits are available to same-sex couples who have a civil union.”
“My commitment,” said Obama, in his interview with The Advocate’s Kerry Eleveld, “is to try to make sure that we are moving in the direction of full equality, and I think the federal government historically has led on civil rights – I’d like to see us lead here, too.”
LGBT legal activists say they understand the DOJ has a responsibility to defend federal laws, they just feel the department went far beyond what it needed to – from providing a basic defense to delivering a vigorous justification. Jennifer Pizer, head of Lambda Legal Defense and Education Fund’s Marriage Project, said her group was “very surprised and disappointed and distressed at the arguments in this brief.”
“They go much farther than they need to,” said Pizer, “and offer arguments we would not expect from this administration.”
Pizer said while legal activists have seen “clear, decisive changes in policy” regarding reproductive rights, “we are not seeing similar decisive, appropriate changes on LGBT people’s issues.”
“This brief’s an example of profoundly distressing doublespeak,” said Pizer.
Well-known legal scholar and champion for equal rights, Lawrence Tribe said he believes the specific case is flawed.
“Although there certainly are instances in which the executive branch should throw in the towel even when that would result in dismantling a duly enacted congressional statute,” said Tribe, “in my view, the Smelt case is not among them.”
Tribe acknowledged that he found much of the DOJ brief “quite baffling – gratuitously reaching for substantive arguments lacking in plausibility, simplistic to the point of being insulting, and insensitive to the force of the strongest arguments against DOMA’s constitutionality as well as to the sensibilities of both gays and straights who find DOMA as abhorrent as I know President Obama does.” But he said the Smelt lawsuit has too many flaws to warrant the administration’s support. Instead, said Tribe, the administration would do better to side with LGBT plaintiffs in the “very powerful” lawsuit being mounted by Gay & Lesbian Advocates & Defenders in Massachusetts.
What DOJ says now
The case is Smelt v. U.S., filed in the U.S. district court for Central California on behalf of Arthur Smelt and Christopher Hammer, who were married in California last year during the period the state was allowed to issue marriage licenses to same-sex couples. The Smelt case and the GLAD case, Gill v. Office of Personnel Management, are two of at least four gay-related marriage challenges filed in federal courts this year.
The best known case, Perry v. Schwarzenegger, was filed just last month by famed attorneys Ted Olson, a staunch conservative, and David Boies, a staunch liberal. A fourth suit, Bonilla v. Levine, asks a federal district court in New Orleans to strike down a state DOMA amendment banning gay marriage.
In its brief on the Smelt case, the DOJ asked the federal district court to dismiss the Smelt lawsuit for a number of reasons, both procedural and legal. In doing so, DOJ asserts that DOMA addresses a legitimate need for the federal government to adopt “a cautious policy of federal neutrality towards a new form of marriage.” It also asks that the courts uphold DOMA in order to protect the federal government’s “scarce resources” and its ability “to respond to new social phenomena one step at a time, and to adjust national policy incrementally.”
“DOMA does not discriminate against homosexuals in the provision of federal benefits,” argues the DOJ. “…DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.”
The brief claims that gay people who marry same-sex spouses “are denied no federal benefits to which they were entitled prior to their marriage.”
One argument that prompted the particular ire of gay legal activists was a claim by the DOJ that the federal government, through DOMA, simply “declines to obligate federal taxpayers in (straight marriage only) states to subsidize a form of marriage their own states do not recognize.”
“This policy of neutrality,” says DOJ, “maximizes state autonomy and democratic self-governance in an area of traditional state concern, and preserves scarce government resources. It is thus entirely rational.”
Without explaining what they were envisioning, the DOJ legal team refers several times to same-sex marriage as being among the “newer types of marriage” and suggests it is reasonable for the federal government to “adopt a cautious, wait-and-see approach” to these entities which it does not identify.
Nevertheless, DOJ concludes that, “Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some states recognize, and that other states do not.”
The brief claims “DOMA ensures that evolving understandings of the institution of marriage at the state level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources – and deciding to extend benefits incrementally – are well-recognized legitimate interests under rational-basis review.”
“There are good reasons why the Justice Department has a policy of defending federal laws regardless of changes in administration,” said gay legal expert and law professor Nan Hunter. “But there is no good reason why a president who campaigned for repeal of DOMA should now be ducking his implicit promise to urge Congress to take that very action.”
Lambda attorney Pizer noted that Assistant Attorney General Tony West, whose name is at the top of the brief, was an Obama supporter and is considered progressive. But West’s name was also on a brief last month from the Solicitor General’s office asking the U.S. Supreme Court to refuse the appeal of a gay man challenging the military’s “Don’t Ask, Don’t Tell” policy. W. Scott Simpson, who is the DOJ attorney who signed the Smelt brief, is a holdover from the Bush administration, as is the third attorney on the brief, James J. Gilligan.