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June 12, 2009

First Obama DoJ brief defends DoMA as constitutional

Yesterday the Justice Department filed its first brief defending DoMA since the Obama administration took office. DoJ argued that DoMA satisfies the Due Process clause because there is no fundamental right to federal benefits associated with marriage, thus largely sidestepping the question of whether the right to marry is fundamental for same-sex couples. [As a back-up, however, the brief argued that the summary affirmance in Baker v. Nelson more than 35 years ago is still good law on the point that there is no federal constitutional right to same-sex marriage. Baker v. Nelson was the appeal from a federal court ruling that Minnesota did not violate the U.S.Constitution by denying a marriage license to a gay couple. The U.S. Supreme Court affirmed without an opinion. 409 U.S. 810 (1972)]

The brief also argued that DoMA's limitation of federal benefits to different-sex spouses does not violate equal protection rights because, under rational basis review, Congress has the flexibility to limit marital benefits to the kind of marriage recognized by all 50 states.

The brief was filed in support of DoJ's motion to dismiss the complaint in Smelt v United States, the most recent iteration in a one-couple campaign (against the advice of the advocacy groups) to challenge the marriage exclusion in California.   The primary defense argument appears to be lack of standing: DoJ argues that Smelt cannot challenge the validity of DoMA because he has not applied for and been denied any federal benefits.

Given the standing argument, there's a good chance that the court's ruling in Smelt may not even reach the merits of the constitutionality of DoMA. But you can bet that a similar version of this brief from DoJ, based on the same arguments, will be filed in two weeks in federal court in Boston. There, a much better crafted case filed by GLAD challenges DoMA's constitutionality on behalf of a number of married Massachusetts couples, all of whom have applied for and been denied the federal benefits that are the subject of that suit.

It is clear from this brief that DoJ will be carrying out its role of defending the constitutionality of DoMA, as it does for all federal statutes almost without exception. These lawsuits - especially the one filed by GLAD - could help nudge Congress to repeal DoMA. And it is in Congress where the heaviest obligation rests on the Obama administration to make good on its stated desire to see the law repealed. The repeal effort cannot be successful overnight, but the President should lead it, not wait passively for the congressional Dems to send legislation to him.

The Smelt case also challenges the constitutionality of Prop 8. The California AG's office filed a motion to dismiss that part of the case, arguing that the plaintiffs lack standing to bring that claim because their marriage is unaffected by Prop 8, since the California Supreme Court upheld the validity of marriages performed before last November's election.

The Justice Department brief tries to put a benign spin on Congress's adoption of DoMA by casting it as a choice to recognize for purposes of federal benefits only those marriages recognized by all states. Only problem is ...that's not true.  Before DoMA, the feds recognized any marriage that was valid in an individual's state of residence, and the states differ on recognition rules for some different-sex marriages (such as between first cousins). Federal law still accepts marriages not valid in all states, with the one exception of same-sex marriages.

What's missing from the brief is also interesting.  The Justice Department did not rely on the legislative history of DoMA, which contains a lot of anti-gay language about the purpose of the law. The Justice Department did not offer deterrence of homosexuality as a justification for upholding DoMA. Small consolations.

Excerpts from the Justice Department brief after the jump.

Congress had long conferred various financial and other benefits on the basis of marriage in light of the central role the institution has played in advancing a variety of societal interests.  When States began to consider adopting historically novel forms of marriage, Congress took a wait-and-see approach.  It codified, for purposes of federal benefits, a definition of marriage that all fifty states had adopted... At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus ...Section 3 of DOMA simply maintained the status quo...

DOMA in no way prohibits same-sex couples from marrying.  Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental...Likewise, DOMA does not discriminate , or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification....

[Congress's] measured response to society's evolving understandings of marriage is entirely rational. ...DOMA ...maximizes democratic flexibility under our federalist scheme, by simply preventing some States from requiring ... the federal government to grant benefits to forms of marriages that, under [its] own constitution, [the] federal government [is] not obligated to recognize...

Congress may subsequently decide to extend federal benefits to same-sex marriages, but its decision to reserve judgment on the question does not render any differences in the availability of federal benefits irrational or unconstitutional.


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It's unfortunate that Obama has indicated himself to be at least partially the classical politician. Here are some points about it at Pandalous.

The brief also suggested that restriction of government advantages to couples does not breach equivalent protection privileges. The legislature has the mobility to limit wedding advantages to the kind of wedding acknowledged.

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