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"Defense of marriage acts" (DOMA)

Part 2. Unsuccessful attempts to declare the federal
DOMA law unconstitutional: 2004 to 2008 (Cont'd)

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This essay is a continuation of Part 1

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Reactions to the federal brief in Smelt v. United States:

This lawsuit was initiated by Arthur Smelt and Christopher Hammer. a same-sex couple in California. The federal government had filed a brief in support of DOMA.

Some LGBT groups were distressed at part of the federal deposition, saying that it compared LGBTs to pedophiles and same-sex marriage to incest. In reality, the administration was attempting to cite cases where marriages which were legally solemnized in one political jurisdiction were legitimately not recognized in a different jurisdiction because of the latter state's laws:

  • One case cited involved the marriage of an uncle to his niece. "...though valid in Italy under its laws, it was not valid in Connecticut because it contravened the public policy of the state."

  • A second case involved the marriage of an adult male to a 16-year-old female in Indiana which was held to be invalid in New Jersey because of her age.

  • A third state involved a marriage of first cousins which was legal in New Mexico but held invalid in Arizona because the spouses were too closely related.

Since the U.S. Supreme Court declared miscegenation laws unconstitutional in 1967, there remain very few restrictions on eligibility for opposite-sex marriage, except age and being too closely related by "blood" (consanguinity) or by marriage (affinity). So the federal deposition had few options other than to cite the type of cases that they did.

FindLaw commented:

"Even in its arguments for dismissal, though, the administration's lawyers avoid supporting the substantive contents of the statute, and instead attack the suit on grounds of jurisdiction, standing and procedural defaults.  When the attorneys do address the validity of the statute itself, they raise notions of federalism to support it and explicitly distance the administration from the arguments of intervening parties that the government has a legitimate interest in encouraging 'responsible procreation'."

"This strategy is clearly meant to send a signal to gay rights groups that the administration still supports expanded rights for the gay community.  The only question now is: will the adminsitration's [sic] actions to dismiss the case speak louder than its words?" 7

A number of Internet bloggers described Simpson, the Justice Department lawyer, as a holdover from the previous administration and a member of The Church of Jesus Christ of Latter-day Saints -- a Mormon. This personal information turned out to be an error, but it spread widely throughout the Internet.

President Obama issued a written statement saying that he has

"... long held that DOMA prevents LGBT couples from being granted equal rights and benefits."

(LGBT. GLBT and various other versions are acronyms referring to lesbian, gay, bisexual, and transgender persons.)

Reaction from religious and social conservatives towards the Justice Department's position was as expected:

bulletBishop Harry Jackson, Jr., chairman of the High Impact Leadership Coalition, describes the Justice Department brief as:

"an assault on biblical, God-ordained marriage. ... Evidently the president signaled to us during the Stonewall celebration, when he had all of the gay activists into the White House and made presentations of what he would do for them, that he values this constituency and he is responding to their urging to accelerate the process of redefining marriage. So, I think it is very hypocritical on his part. I'm very outraged."

It is not clear how President Obama's consistent stance towards same-sex marriage and DOMA is being "hypocritical."

In his article, Jackson rejected the widespread beliefs that:
bulletSame-sex marriage is a civil rights issue, and
bulletOpposition to same-sex marriage is the moral equivalent of racism.
 

bulletBrian Raum of the Alliance Defense Fund -- a fundamentalist Christian legal defense organization -- stated:

"It's really troubling that the federal government has taken a position that federal policy is bad policy. Federal DOMA was passed overwhelmingly and represents the prevailing view of the people of the United States that marriage is between a man and a woman and that's the optimal environment for raising kids."

Author's observations:

We seem to be seeing a replication of the interracial marriage conflict of the late 20th century:  
bulletIn 1948, about 90% of American adults opposed interracial marriage. In that year, the Supreme Court of California legalized it.
 
bulletIn 1967, 16 states still had anti-miscegenation laws in place that banned inter-racial marriage. 72% of American adults still opposed interracial marriage. In that year, the U.S. Supreme Court legalized interracial marriage everywhere in the U.S., in an ironically named case: Loving v. Virginia.
 
bullet Most American adults were opposed to interracial marriage until 1991. Since then, most adults have favored the redefinition of marriage to include interracial couples.

More information on interracial marriage.

The fundamental question to be answered about DOMA is which should rule:

bulletEither the "prevailing view of the people of the United States," or
 
bulletThe U.S. Constitution's guarantee of equal treatment for all citizens.

That is, should the U.S. be ruled by the tyranny by the approximately 55% majority of its voters who rejected same-sex marriage back in 2009, or should it be ruled by its Constitution, which guarantees equal rights to everyone. Since every American is a member of at least one minority, a case can be made that the Constitution should rule, in order to prevent the civil rights of all from being in jeopardy.

One News Now, a fundamentalist Christian news source from American Family News Network, has been following the same notation as other social and religious conservative information sources. When referring to same-sex marriage, they place the word "marriage" in quotation marks to indicate their denigration of the concept.

In their report on 2009-AUG-18 on the Justice Department's anti-DOMA brief, One News Now dropped the quotation marks in three locations. They also dropped the quotation marks in one location where they referred to homosexual marriages. It is not clear whether this is a typo, or a change in policy to recognize marriage equality. We suspect it is a typo, but were unable to confirm this because One News Now did not respond to our emailed request for clarification.

2009-AUG-25: Judge dismisses DOMA lawsuit:

District Court Judge David Carter of the Central District of California dismissed the Smelt v. United States case on a technicality. It seems that the plaintiffs originally filed their lawsuit in state court, and it was later moved to federal court. Judge Carter found that the state court did not have jurisdiction over the case because it named the United States as defendant. Thus, a federal court cannot take the case over. However, the plaintiffs can re-file their case directly with the federal court. 8

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Alex Okrent, "Equality is a moral imperative," Organizing for America, 2009-FEB-28, at: http://my.barackobama.com/
  2. Michael Triplett, "Reporting on the DOMA Brief, Part 1," National Lesbian & Gay Journalists Association at: http://nlgjareact.wordpress.com/
  3. Jim Brown & Charlie Butts, "Obama follows through, files to repeal DOMA," One News Now, 2009-AUG-18, at: http://www.onenewsnow.com/
  4. Terry Phillips, "Same-sex couples take on the IRS," Family News in Focus, 2004-MAY-26, at: http://www.family.org/
  5. Jake Tapper, "Obama Justice Department Defends Defense Of Marriage Act  That Candidate Obama Opposed," ABC News, 2009-JUN-12, at: http://blogs.abcnews.com/
  6. Decian McCullagh, "Gay Rights Groups Irate After Obama Administration Lauds Defense Of Marriage Act," CBS News, 2009-JUN-12, at: http://www.cbsnews.com/
  7. Kevin Fayle, "Obama Administration Says It Must Support DOMA, But It Doesn't Have to Like It," FindLaw, 2009-AUG-17, at:  http://blogs.findlaw.com/
  8. Kevin Fayle, "Judge Dismisses DOMA Lawsuit, Even Though Everyone Involved Seems to Hate DOMA," 2009-AUG-25, at: http://blogs.findlaw.com/
  9. Alex Okrent, "Equality is a Moral Imperative," 2008-FEB-28, at: http://my.barackobama.com/
  10. W. Scott Simpson, "Government Memo Supporting Dismissal of Defense of Marriage Act Lawsuit," Scribd, 2009-AUG-17, at: http://www.scribd.com/
  11. Arthur Smelt et al v. United States of America et al," Justia Dockets & Filings, at: http://dockets.justia.com/
  12. "DOMA stories: Federal marriage discrimination hurts families," Gay & Lesbian Advocates & Defenders, at: http://www.glad.org/

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Copyright © 1995 to 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2009-AUG-17
Latest update: 2012-NOV-26
Author: B.A. Robinson

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