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 after the jump.) 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 benefit 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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6 Comments
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Thanks Nan. I was going to post about this but you beat me to it!
Alex Blaze | August 17, 2009 5:39 PM
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Thanks, Nan, for letting us know about this update.
As was said under Clinton (Bill, I mean): "Close, but no cigar."
A. J. Lopp | August 17, 2009 11:09 PM
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It’s not a change in policy. It’s political theatre instead of substance on a par with his gracious invitation to enjoy the fun and games at the White House easter egg roll. Or passing out a couple of medals.
The only thing that'll count is the repeal of Clintons DADT and DOMA and that seems unlikely in the extreme. Obama was able to steal a lot of the christer bigot vote away from the Republicans last fall and neither he nor the Democrats as a whole want to lose it by being identified with LGBT equality.
Not that there was ever much danger of that happening. This is likely just another diversion to keep our minds off being constantly run over by the O-bus.
Bill Perdue | August 18, 2009 4:32 AM
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See, Bill, if we talk long enough, we'll find points where even you and I agree!
Your theory about Obama wanting to hold on to the conservative religious black voters more than the GLBT voters sounds pretty good. Unfortunately, my guess is that, nation-wide, they outnumber us about two to one.
This is another reason why our historical utter failure in the latter half of the 20th Century to reach out to the religious blacks is coming back to bite us in our collective butt. We have partially corrected this, but not well enough or long ago enough for it to show results at the voting booth.
A. J. Lopp | August 18, 2009 5:38 PM
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We're still not agreeing, AJ. At least on everything. We should, as a movement, have done more to build alliances with other communities - but we didn't. HRC's trip to Jena LA was good but rare. Secondly, I don't know how you appeal to specifically religious people. Irrationality is the hallmark of religion and it makes it hard to talk on that basis. I think it's better to build mutually beneficial political relationships based on equal rights and against hate crimes and leave the religious bigots like Obama, Dubois, Kaine, Daughtry and Hillary Clinton out of it.
First I don’t think it’s a theory and it’s certainly not mine alone. It's been pretty well documented on an ongoing basis that Obama played the bigot card to the hilt and appealed to christer of all ethnicities. He succeeded in winning large numbers of them from the Republicans and you’re right that he’s not about to let them go.
Where I think we still disagree is that I think that his bigot pandering never was limited to or mainly addressed to African American bigots or that African American christian bigots are the sum of his base. First he jumped into bed with rabid bigoted christer scum like Donnie McClurkin and MaryMary and as his campaign took off Joshua Dubois organized a broad national base of christian bigots of all ethnicities. Certainly that was the case when Obama appeared at Rick Warren’s southern baptist bigotfest to bellow out his bigoted war cry “gawds in the mix”. The power of Obama’s bigotry was demonstrated by it’s use by Yes on 8 to unexpectedly and decisively defeat us in California.
He appears to have a broad multi-ethnic base among christian bigots which he’s consolidating using the Hillary Clinton/Rick Santorum authored law on 'faith based' charities law to bribe pulpit pimps of all ethnicities - money for votes. It's an old and ugly game except now it involves the use of hundreds of millions of tax dollars - our tax dollars. That effort is being run by Josh Dubois, an ordained pentecostal bigot who, like the Bigot in Chief, opposes same sex marriage.
Obama is anything but daft. He never limited his appeal to African Americans. As a matter of fact he had nothing to say of any substance about ending the poverty and social dislocations caused exclusively by racism. He didn't call for a crash program to create good jobs for workers, subsidized housing, and free education in universities, a massive educational effort about HIV/AIDS or socialized medicine. Nor will he. Those measures are all urgently needed, particularly in Black, Latino and immigrant communities (as they are for all workers). Clinton’s recession is on the verge of becoming a depression. Depressions are not self-correcting; they just get worse and worse.
And Obama’s response? He’s doing all he can to break the UAW and affiliated unions that provided the largest base of jobs with fair pay and good benefits jobs for African Americans (and everyone else) in the Midwest and the on the west coast. He’s not looking to make friends and he won’t get any doing that.
GLBT folks are not the only ones hes betraying.
Bill Perdue | August 18, 2009 8:04 PM
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It is good to know that the arguments have seen some serious improvement. Thanks for the update. The healthcare posts were starting to be like documentaries on the Titanic, there is always one on somewhere. But hey the old marriage equality posts were like the documentaries about ancient Egypt there is always one of those one too.
Rob Barton | August 18, 2009 10:33 AM
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