Department of Justice files reply brief in lawsuit challenging the federal DOMA

08/17/09 reply brief by Department of Justice supporting dismissal of DOMA lawsuit

(Roundup of commentary and news about the 06/11/09 brief)

Updated 08/23/09

Commentary

08/21/09 WordinEdgewise, by law professor John Culhane:

Culhane responds to a column by Maggie Gallagher, president of the National Organization for Marriage.

08/18/09 Leondard Link, by law professor Arthur Leonard:

Some LGBT activists are charging President Obama with hypocrisy or inconsistency in his approach to DOMA (and to "don't ask, don't tell" - the embarrassing military policy under which we collectively are supposed to play let's pretend" when it comes to gays serving in the uniformed military). I think the argument works better when it comes to DADT, and here's why.

08/17/09 WordinEdgwise, by law professor John Culhane:

Today, the Obama Administration filed its reply brief in the California Smelt case, where gay couples have challenged the Defense of Marriage Act (”DOMA”). Let me start by giving away the punch line: It contains powerful statements on gay parenting and the weakness of the procreation argument that are likely to cause apoplexy in opponents of equality. This brief goes a long way towards undoing the legal and political damage that an earlier filing caused.

08/17/09 Leonard Link, by law professor Arthur Leonard:

[The Department of Justice] persists in arguing that in light of the raging debate over same-sex marriage, it was rational for Congress to maintain the "status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states." That strikes me as lame. Maintaining a discriminatory status quo calls for a justification, an affirmative reason why, as a matter of public policy, the federal government should disrespect marriages from some states and not from others.

08/17/09 Volokh Conspiracy, by law professor Dale Carpenter:

What a difference two months can make. While the DOJ hasn't retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs' lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job.

08/17/09 LawDork:

Those who assert that the Obama Administration did not even need to file a brief will be dissatisfied with the brief because it essentially incorporates the earlier arguments into this reply brief and continues to defend DOMA as a legal matter. But, for those many people who believe that the government, in a situation such as this, does have a responsibility to defend the law, this brief makes clear the distinction between opposing a policy and defending a law.

08/17/09 hunter of justice, by law professor Nan Hunter:

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 ... [But] [t]he 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.

News

08/18/09 Los Angeles Times:

"It's simply wrong when they say there are reasonable arguments that can be made in support of [federal DOMA's] constitutionality," said Carisa Cunningham, director of public affairs for Gay & Lesbian Advocates & Defenders, which is suing the government on behalf of a dozen gays in Massachusetts denied federal benefits because of the ban ... "But this administration, contrary to its predecessors, has acknowledged the reality that children are part of families with gay and lesbian parents and those children can grow up as well adjusted as anyone else. That's a very important acknowledgment, and it is also important legally"

"I think it's unfortunate that the administration has taken a position seeking to repeal federal DOMA and now is in the precarious position of defending it in court," said Brian Raum, senior legal counsel for the Alliance Defense Fund, a Christian legal organization.

08/18/09 Christian Post / ADF Alliance Alert:

Traditional marriage supporter Brian Raum, senior counsel of the Alliance Defense Fund, isn't surprised by the administration's opposition to the marriage law but calls it a tragedy. “The administration stands against the vast majority of Americans who have voted decisively to protect marriage every time marriage is on the ballot,” Raum said. “Though it’s no surprise that the administration opposes DOMA, it’s a tragedy for America’s children that our leaders don’t believe that every kid has a right to both a mom and a dad.”

08/18/09 AP:

The mixed message got a mixed review from Joe Solmonese, president of the Human Rights Campaign, a gay-rights group. “It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act,’’ Solmonese said in a statement. “While they contend that it is the DOJ’s duty to defend an act of Congress, we contend that it is the administration’s duty to defend every citizen from discrimination.’’

08/18/09 SF Chronicle

"The administration listened to our concerns and removed some of the offensive approaches," said attorney Jenny Pizer of Lambda Legal, a gay-rights organization. But she said the government "continues to argue that anti-gay discrimination does not deserve serious constitutional scrutiny."

08/18/09 Washington Post:

At a Washington conference in June, White House Staff Secretary Lisa Brown and vice presidential chief of staff Ronald Klain acknowledged dissatisfaction among the president's gay supporters. "There's no question . . . that there were some cites in there that should not have been" in the earlier filing, Brown said at the American Constitution Society's annual conference, noting that this was her personal opinion. "The administration is trying hard; it's moving slowly," Brown said at the time.

08/18/09 Washington Times:

Brian Brown, executive director of the National Organization for Marriage, accused the president of breaking a campaign promise made in his televised interview with California megachurch pastor Rick Warren. "In a high-profile interview with Rick Warren, Barack Obama convinced millions of Americans he opposed gay marriage," he said. "We are calling on the president to live up to his campaign commitment."