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August 17, 2009

DoJ's new tune on DoMA

The Department of Justice has just filed a new brief in the Smelt case that defends the constitutionality of DoMA, but also states the Obama administration's opposition to DoMA as a policy matter and explicitly repudiates anti-gay arguments based on parenting. It was DoJ's earlier brief in this case that prompted a firestorm of criticism from lgbt advocates.

The new brief continues to argue that sexual orientation classifications are subject to only rational basis review and that Congress was justified in enacting DoMA. So the bottom line defense hasn't changed. (There was never much reason to imagine that DoJ would fail to defend DoMA in court, however, especially in this across-the-board challenge.)

The most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing. (See quotes below)  This puts the federal government on record as to these claims in a way that has never happened before. 

From the brief (emphasis is mine):

Under that deferential [rational basis] standard, this Court should find that 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....Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

...[T]he government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies [DoMA]. [Multiple professional groups] have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents...[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 interest to defend DoMA's constitutionality.

In addition, the new brief emphasizes much more than the first one did that plaintiffs' challenge to DoMA can be dismissed solely on jurisdictional and standing grounds, without reaching the merits at all.

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Comments

I think you even underestimate the significance of the statement on gay parenting. This has always been an isuue that has been left to the lawyers, judges, and activists. I can recall no politician -- federal. state, or local -- previously addressing the question at all, figuring, I'd assume, that it was only a vote loser. (The paranoia about 'gays and kids' hasn't gone away.)

But this wasn't just a political statement, but a brief setting forth the policy of the government. When Obama opened the White House Easter Egg hunt to gay families, it was dismissed -- particularly by those gays who get their thoughts from one particular blog -- as a merely symbolic gesture. But now that symbolism has become policy.

And the DoJ and Obama didn't need to make this statement. Afaik, they could have just ignored the argument, or stated that they did not join in it, without specifically refuting it. Instead, they made this declaration that 'gays make as good parents as straights.'

(Personal disclosure, I am 63 years old and was raised in a lesbian household in suburban NJ in the Fifties. Much of my interest in this issue is because I wish other people to have the opportunity my mothers never had in the entire 35+ years of their relationship.)

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