A federal agency moved last week to dismiss the first lawsuit filed against the federal ban on same-sex marriage.
The U.S. Department of Justice filed a motion June 11 to dismiss a suit by a married same-sex couple from California, Arthur Smelt and Christopher Hammer, who argued that the 1996 Defense of Marriage Act violates their federal rights to privacy, travel and free expression.
Congress approved DOMA in 1996, a law that prohibits the extension of federal marriage benefits to same-sex couples.
In last week’s brief, the Department of Justice acknowledged that Smelt and Hammer were legally married in California, but said they were not entitled to any other recognition on account of DOMA.
“This case does not call upon the court to pass judgment … on the legal or moral right of same-sex couples to be married,” the motion states. “Plaintiffs are married and their challenge to DOMA poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by states that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this court, the answer to these questions must be no.”
Shin Inouye, White House LGBT spokesperson, said the department is required to support current law.
“As it generally does with existing statutes, the Justice Department is defending the law on the books in court,” Inouye said.
Smelt and Hammer married in California in July, during the five-month period when such unions were legal, prior to the passage of Proposition 8, a ballot measure that banned same-sex marriage in the state.
The couple filed the suit in state court in December, one month after Prop. 8 passed, and the case moved to federal court in March.
Also last week, California Attorney Gen. Jerry Brown filed a brief in support of another federal lawsuit, submitted by two California couples who tried to obtain marriage licenses after the passage of Prop. 8.
The Department of Justice’s motion notes that Smelt and Hammer lack proper standing to challenge DOMA, as they have not tried to obtain — or been subsequently denied — federal marriage benefits or benefits from other states.
However, the motion goes on to promote DOMA as a fair and cost-effective policy, one that reflects a “cautious policy of federal neutrality towards a new form of marriage,” in that it allows states to decide the issue of marriage equality on their own but does not “obligate federal taxpayers in other states to subsidize a form of marriage their own states do not recognize. This policy of neutrality maximizes the state autonomy and democratic self-governance in an area of traditional state concern and preserves scarce government resources. It is thus entirely rational.”
The brief also raises another justification for DOMA: that a government does not have to recognize certain marriages if they conflict with public policy, noting that Italy sanctions certain types of incestuous marriages, while such unions would violate American public policy.
The department’s defense of DOMA has drawn the ire of LGBT individuals and organizations throughout the country.
Lynn Zeitlin, executive director of Equality Advocates Pennsylvania, said that while the department may be bound to defend DOMA, it did not need to use the language that it did.
“They may have to support the law, but they could have done so in a much more minimalist way,” Zeitlin said. “They could have just said DOMA is the law, and the Department of Justice must uphold the law, and therefore, we must support DOMA.”
Geoffrey Kors, executive director of Equality California, criticized the brief’s reasoning that “Congress has the right to deny one minority equal benefits as a way of saving money” as “truly offensive.”
Jennifer Pizer, marriage project director for Lambda Legal, said the administration’s apparent support for DOMA outlined in the motion directly opposes President Obama’s previous stance on DOMA.
“The president made very explicit and emphatic campaign promises that he opposes DOMA and would provide leadership calling on Congress to repeal it,” she said. “This brief is not consistent with that promise.”
During an appearance on “The Rachel Maddow Show” this week, former Democratic National Committee chairman and Vermont Gov. Howard Dean decried the language of the brief, but said he doubted the president played a role in crafting it.
“The language in this brief is really offensive and it really is a terrible mistake,” said Dean. “I doubt very much the president knew this was coming. I don’t think for a minute this represents the president’s position. But he is now going to have to dig himself out of this, because people are really upset about this, not just in the gay and lesbian community, but in the community of people who are interested in equal rights.”
Inoyue said Obama is still in favor DOMA’s repeal, but asserted that the DOJ cannot revoke its support of DOMA until Congress repeals the law.
“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,” Inouye said, adding that “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
Joe Solmonese, president of the Human Rights Campaign, sent a letter to Obama June 15 blasting the brief and asking the president to take action on DOMA.
“When your administration filed [the brief], I realized that although I and other LGBT leaders have introduced ourselves to you as policymakers, we clearly have not been heard and seen as what we also are: human beings whose lives, loves and families are equal to yours,” the letter stated in part. “As an American, a civil-rights advocate and a human being, I hold this administration to a higher standard than this brief. In the course of your campaign, I became convinced — and I still want to believe — that you do, too. We call on you to put your principles into action and send legislation repealing DOMA to Congress.”
Openly gay U.S. Rep. Tammy Baldwin (D-Wisc.) said she was “profoundly disappointed” at the administration’s action, but expressed optimism that Obama and Congress can work together to repeal the statute.
“I still take President Obama at his word that he is committed to the repeal of DOMA. I also recognize that he cannot do it alone,” Baldwin said. “Congress has the responsibility on its shoulders to pass legislation that would give the opportunity to the president to keep his word and ensure that all married people, including those in same-sex marriages, enjoy the same rights under federal law.”
Zeitlin noted that the brief could urge Congress to move forward on the repeal of DOMA.
“I think that the members of Congress who understand the harm that DOMA does — states that have full free equality, but don’t have federal equality that they can give to their citizens — must be very upset with this,” she said. “Right now we have a patchwork of protection and lack of protection that makes our country frankly look ridiculous.”
Jen Colletta can be reached at [email protected].