"Defense of marriage acts" (DOMA)
Part 2. Unsuccessful attempts to declare the federal
law unconstitutional: 2004 to 2008 (Cont'd)
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.
"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
held that DOMA prevents LGBT couples from being granted equal rights and
(LGBT. GLBT and various other versions are acronyms referring to lesbian, gay, bisexual, and
Reaction from religious and social conservatives towards the Justice
Department's position was as expected:
|Bishop 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:
|Same-sex marriage is a civil rights issue, and|
|Opposition to same-sex marriage is the moral equivalent of racism.|
|Brian 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."
We seem to be seeing a replication of the interracial marriage conflict of
the late 20th century:
|In 1948, about 90% of American adults
opposed interracial marriage. In that year, the Supreme Court of California
|In 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.|
||Most American adults were opposed to interracial marriage until 1991.
Since then, most adults have favored the redefinition of marriage to include
More information on interracial marriage.
The fundamental question to be answered about DOMA is which should rule:
|Either the "prevailing view of the people of the United States," or|
|The 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
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Alex Okrent, "Equality is a moral imperative," Organizing for America,
- Michael Triplett, "Reporting on the DOMA Brief, Part 1," National Lesbian &
Gay Journalists Association at:
- Jim Brown & Charlie Butts, "Obama follows through, files to repeal
One News Now, 2009-AUG-18, at:
- Terry Phillips, "Same-sex couples take on the IRS," Family News
in Focus, 2004-MAY-26, at:
- Jake Tapper, "Obama Justice Department Defends Defense Of Marriage Act
That Candidate Obama Opposed," ABC News, 2009-JUN-12, at:
- Decian McCullagh, "Gay Rights Groups Irate After Obama Administration Lauds
Defense Of Marriage Act," CBS News, 2009-JUN-12, at:
- Kevin Fayle, "Obama Administration Says It Must Support DOMA, But It Doesn't Have to Like
It," FindLaw, 2009-AUG-17, at:
- Kevin Fayle, "Judge Dismisses DOMA Lawsuit, Even Though Everyone Involved
Seems to Hate DOMA," 2009-AUG-25, at:
- Alex Okrent, "Equality is a Moral Imperative," 2008-FEB-28, at:
- W. Scott Simpson, "Government Memo Supporting Dismissal of Defense of
Marriage Act Lawsuit," Scribd, 2009-AUG-17, at:
- Arthur Smelt et al v. United States of America et al," Justia Dockets & Filings, at: http://dockets.justia.com/
- "DOMA stories: Federal marriage discrimination hurts families," Gay & Lesbian Advocates & Defenders, at: http://www.glad.org/
Copyright © 1995 to 2012 by Ontario
Consultants on Religious Tolerance
Originally written: 2009-AUG-17
Latest update: 2012-NOV-26
Author: B.A. Robinson