Obama lawyers offer reluctant defense of gay marriage ban

A 1996 law banning federal recognition of same-sex marriage is discriminatory and should be repealed, lawyers for the Obama administration said in court papers filed Monday, offering moral support for a constitutional challenge brought by a gay couple from Orange County.

But in a demonstration of the president’s inability to quickly deliver on campaign promises to end bias against gays, the Justice Department urged dismissal of the lawsuit challenging the Defense of Marriage Act, noting it remains law until Congress repeals it.

That ambivalence spurred criticism from both sides of the gay rights battle. Opponents of same-sex marriage accused the White House of insincerity in its defense of the act, and supporters demanded a more proactive approach to ensuring that all citizens enjoy equal protection under the law.

As a candidate for the White House, Barack Obama vowed to repeal the law, which bars the federal government from treating same-sex marriages as legal or granting federal benefits to gay spouses.

President Obama announced two months ago that he was extending some benefits to gay federal employees and proclaimed June “Lesbian, Gay, Bisexual and Transgender Pride Month.”


But gay rights advocates want the administration’s support in getting courts to strike down as unconstitutional the federal gay marriage ban, as well as the “don’t ask, don’t tell” policy prohibiting gays from openly serving in the military.

The administration’s original response in June to the Orange County couple’s lawsuit angered gay rights advocates for its focus on jurisdictional grounds and on the plaintiffs’ “failure to state a claim” to have been harmed by the federal law. Monday’s filing made clear that the White House opposes the law and defends it reluctantly against the constitutional challenge.

“This administration does not support DOMA as a matter of policy, believes that it is discriminatory and supports its repeal,” Assistant Atty. Gen. Tony West wrote in a brief filed with the U.S. District Court for the Central District of California. “Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality.”

Gay rights advocates saluted the administration’s expression of distaste for the ban and its rejection of conservatives’ arguments that gay parenting poses a threat to children. But they disputed the position that the law deserved defending.

“It’s simply wrong when they say there are reasonable arguments that can be made in support of its 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,” Cunningham said.

Opponents of gay marriage were critical of the administration for what they saw as a half-hearted defense of the federal ban.

“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.

West urged the court to dismiss the lawsuit brought by Arthur Smelt and Christopher Hammer of Mission Viejo on technical grounds, rather than weigh the merit of their claim that the law is unconstitutional.

Smelt and Hammer haven’t shown that they have been adversely affected by the law, West argued, because their marriage is legal in California and they have neither sought nor been denied federal benefits.

Hammer said he and Smelt had attempted to file a joint income tax return this year but were rebuffed, as Internal Revenue Service instructions limit joint returns to marriages of a man and a woman. He said he had lost faith that Obama would make good on his campaign promises.

“I think he’s going to do what Clinton did -- fudge it all, like with ‘don’t ask, don’t tell,’ ” Hammer said. “I’m sorry to see that because he will end up being a one-term president if he alienates everyone who supported him.”

West, in the nine-page brief, defended the ban as a legitimate federal posture while the issue of gay marriage is being hashed out at the state level.

The law “reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage,” he wrote.

But West made clear that the administration saw little justification for the law.

“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,” West said.

He also referred to reports by pediatric, psychological and child-advocacy agencies that “children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.”

Justice Department spokeswoman Tracy Schmaler said Obama remained committed to seeing the ban repealed.

“The department’s filing in this case upholds the rule of law in keeping with our obligation to defend federal statutes when they are challenged in court,” Schmaler said. “The Justice Department cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences.”