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June 19, 2009


DOMA defense touches off week of anger at Obama

Washington, D.C.--The Obama administration put a match to an LGBT powder keg of discontent last week when it defended the 1996 federal “defense of marriage act.”

The brief was filed in the U.S. District Court in southern California June 12 asking the court to dismiss the suit of a gay married couple who are claiming that DOMA violates their right to be considered married in other states they may travel to.

While it is given that the administration has an obligation to defend the laws of the United States, it is being widely criticized for being too extreme.

It goes far beyond asking the court to dismiss the suit on the claims that the couple has no standing to bring it, or the government’s right to sovereign immunity, or that DOMA does not apply to the couple.

The brief goes on to make claims typically used by LGBT rights opponents.

“The fact that states have long had the authority to decline to give effect to marriages performed in other states based on the forum state’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA,” asserts the government.

To illustrate that point, they use the examples of incest and pedophilia in three cases--an uncle and niece married in Italy but not Connecticut, a 16-year-old’s marriage to an adult voided in New Jersey, and the marriage of first cousins in New Mexico declared invalid in Arizona.

The administration argues that same-sex couples have no federal right to marriage or the benefits of marriage, that marriage is not a constitutionally fundamental right for same-sex couples, and that the government has an interest in preferring heterosexual marriage.

“DOMA merely codifies that definition of marriage historically understood by society,” the government claims.

The administration also argues that DOMA “protected the ability of elected officials to decide matters related to homosexuality.”

DOMA “plainly was not born solely as a result of animosity towards homosexuals,” they continue.

The brief also makes the claim that DOMA does not prohibit gay and lesbian couples from marrying, nor from marrying the individual of their choice, so long as they do not seek to have that marriage recognized for federal benefits and protections.

The administration argues that same-sex marriages are outside the Constitution’s Equal Protection Clause and the concerns of married same-sex couples are only worthy of the lowest level of judicial supervision, rational basis scrutiny.

The couple, Arthur Smelt and Christopher Hammer, say that the rights of same-sex married couples is entitled to heightened scrutiny, a much higher level of judicial oversight.

Three Department of Justice attorneys worked on the brief. Its actual drafter, Senior Trial Counsel W. Scott Simpson, is a holdover from the Bush administration and a devout Mormon who was given an award by former Attorney General Alberto Gonzales for similar tactics attacking the privacy rights of women while defending the ban on late-term abortions.

This raises questions about assignments and supervision of attorneys at the department.

White House: Better things coming

Among LGBT rights advocates, reaction to the brief has been swift and severe since word of it first appeared on It adds to growing dissatisfaction for Obama for inaction and lack of leadership on LGBT matters he promised to address as a candidate, with “don’t ask, don’t tell” at the top of the list.

Candidate Obama promised to repeal all three sections of DOMA, and used the issue to dissuade LGBT voters from supporting Hillary Clinton, who only wanted to repeal two of the sections.

A brief White House statement avoids addressing the charges of excess and the use of anti-LGBT arguments.

“As it generally does with existing statutes, the Justice Department is defending the law on the books in court,” reads the statement sent by spokesperson Shin Inouye. “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.”

A gay administration official who cannot be identified defended the brief in an attempt to “frame the issue better.”

The official said the brief needs to be “taken as a whole.”

“Not to belittle concerns, but compared to previous administrations, this is an improvement.”

The official said there “are signals that in the coming days and weeks concrete steps will be taken by the president to address this and other issues of importance to the community.”

Five quit gay Democratic fundraiser

That’s not coming soon enough for some gay high-dollar donors to the Democratic National Committee.

The DNC is holding a major LGBT fundraiser next week in Washington, featuring Vice President Joe Biden. Tickets are $1,000.

The party has been circulating a list of influential lesbian and gay invitees in order to build interest. The three openly gay members of Congress, Barney Frank, Tammy Baldwin and Jared Polis are on the host committee.

However, five on the list have pulled out in protest of the brief, and the event is in danger of collapsing.

At mid-week, the cancellations are former Clinton administration LGBT liason Richard Socarides, Clinton adviser David Mixner, Empire State Pride Agenda director Alan Van Capelle, blogger Andy Towle and HRC’s political director Marty Rouse.

The Washington Blade will have reporters and cameras posted at the door to record which LGBT guests show up.

Statements of condemnation of the brief have been issued by heads of LGBT organizations including HRC President Joe Solmonese, and Lambda Legals legal director Jon Davidson.

A New York Times editorial called the brief “disturbing.”

“If the administration does feel compelled to defend the act, it should do so in a less hurtful way,” the Times opined.

“It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.”

‘A lot too far’

Former DNC chair Howard Dean said on MSNBC said the brief was “a lot too far.”

Though not backing away from sponsorship of the DNC fundraiser, Polis became the only gay member of Congress to issue a statement on the matter.

“I was shocked and disappointed to learn that President Obama chose to defend DOMA in federal court, especially given his campaign promise to call for a full repeal of DOMA,” Polis said.

“My sadness turned to outrage when I read the Justice Department’s brief that not only defended this hurtful law but seemed to embrace it. Comparing my loving relationship with my partner, Marlon, to incest was unconscionable coming from a president who has called for change.”

Polis concluded, “Since this filing, I have called on the president to issue a statement or give any sign that would clarify his position and am disappointed in his lack of reply.”


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