The department filed a motion Aug. 17 urging a federal court to dismiss a challenge filed by Arthur Smelt and Christopher Hammer against DOMA, which prevents the federal government from recognizing same-sex unions. The court papers acknowledge that the administration opposes the law, but must uphold it.
“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.”
Beyond expressing the administration’s opposition to DOMA, the brief goes on to reject the notion that DOMA is constitutional in that it prevents children from being raised by LGBT parents, noting that the department “does not believe 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.”
Obama issued his own statement this week, explaining the administration’s stance.
“This brief makes clear that my administration believes that the act is discriminatory and should be repealed by Congress.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.”
Joe Solmonese, president of the Human Rights Commission, said the department’s and the president’s expressed disagreement with DOMA cannot counter the department’s continued legal support for the law.
“It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act,” Solmonese said in a statement.
Smelt and Hammer, who were married in July 2008 before the passage of Proposition 8, filed the suit in California state court in December and it moved to federal court in March. The suit alleges that DOMA violates the couple’s constitutional rights to privacy, travel and free expression.
This week’s court filing, issued in response to a brief filed on behalf of the plaintiffs, states in part that Smelt and Hammer do not have legal standing to file the suit, as they did not try to secure, and were subsequently not denied, rights from any other state or the federal government.
The motion also puts forth that issues of sexual-orientation discrimination should be looked at through the legal lens of rational basis — the least stringent test — as opposed to strict scrutiny, typically used in cases of racial or religious discrimination.
Kate Kendell, executive director of the National Center for Lesbian Rights, said in a statement this week that she was “disappointed” in the brief’s support of the rational-basis test.
“We believe that the Justice Department would be unlikely to make that argument in defense of a law that discriminated against women or other minorities,” Kendell said.
Jenny Pizer, marriage project director at Lambda Legal, shared Kendell’s sentiments about the need for strict-scrutiny review but also went on to say the motion is an “enormous improvement” on the previous brief the department filed in the case in June.
That motion drew strong criticism from the LGBT community for its strong support for DOMA and its comparison on same-sex marriage to incest.
Also on Monday, the department announced the creation of an LGBT liaison position within the DOJ, which will be filled by Matt Nosanchuk, an openly gay former legal adviser to U.S. Sen. Bill Nelson (D-Fla.).
Jen Colletta can be reached at firstname.lastname@example.org.