Lawyers for the Christian-based
Alliance Defense Fund (ADF) said Monday that President Obama's
defense of the Defense of Marriage Act (DOMA) was not “optimal.”
As intervenor in Smelt v. United
States, the ADF is promoting the argument that there is a
government interest in “responsible procreation.”
In a Monday filing, the Department of
Justice took a swipe at that argument, saying: “... the 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 interests to defend DOMA's
constitutionality.”
“It is very disappointing that the
[Justice Department] has rejected the idea that kids do best in homes
with a married mother and father,” ADF attorney Brian Raum told
Baptist Press.
DOMA was signed by President Bill
Clinton. The law defines marriage as a heterosexual union for the
federal government and allows states to ignore legal gay marriages
performed elsewhere. Candidate Obama called the law “abhorrent”
and promised he would repeal it. But the administration's first
filing in Smelt said the law did not discriminate against gay
and lesbian couples and was laced with archaic anti-gay arguments,
angering
gay leaders and activists.
On Monday, Obama lawyers said DOMA was
constitutional and defensible, but cushioned their arguments with a
statement that calls the 1996 law unfair.
“With respects to the merits, this
Administration does not support DOMA as a matter of policy, believes
that it is discriminatory, and supports its repeal,” the brief
states.
“They've taken the precarious
decision of defending DOMA while at the same time claiming that it's
bad policy … [I]t is certainly not optimal for the attorney who is
defending a particular law to concede that their clients believe it's
bad policy. I think that's detrimental to the case,” Raum added.
The administration's defense comes in a
brief against a gay couple – Arthur Smelt and Christopher Hammer –
married in California before the enactment of Proposition 8 who have
sued the federal government for recognition of their marriage.
The Department of Justice is arguing
that the Orange County couple have not been harmed by DOMA because
they have not applied for federal benefits.
(Federal suits moving forward in
Massachusetts, where gay marriage has been legal for five years,
include gay and lesbian couples who have been denied federal
benefits.)
While social conservatives railed
against the administration's softened tone against DOMA, gay
activists welcomed the new language.
“I guess this is a step in the right
direction,” John Aravosis, one of the most vocal opponents to the
administration's June filing, said in a blog post at AmericaBlog.com.
Carisa Cunningham, director of public
affairs for Gay & Lesbian Advocates & Defenders, told the Los
Angeles Times that the brief's support of DOMA as constitutional
is “simply wrong,” then added: “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.”
Similar sentiments were shared by
National Center for Lesbian Rights Executive Director Kate Kendell in
a statement Monday: “We appreciate that the Department of Justice
has acknowledged that DOMA is a blatantly discriminatory measure that
must be repealed.”
“We remain disappointed that the
Department of Justice continues to defend DOMA and to argue that laws
that discriminate based on sexual orientation do not raise serious
constitutional problems,” Kendell added.
Representative Mike Quigley, a Democrat
from Illinois and a member of the Congressional Lesbian, Gay,
Bisexual and Transgender Equality Caucus, called the administration's
softened tone “encouraging.”
“Even though DOMA continues to be
upheld, we are seeing cracks in the foundation upon which opponents
have built their case for decades,” Quigley said in an email. “We
will continue to fight to tear down the wall of inequality until
everyone is treated not only with fairness and respect, but with
equity under the law.”