Unlike the Obama Administration’s brief filed in the Don’t Ask, Don’t Tell case turned away by the Supreme Court this week, last night’s filing in Smelt v. United States goes too far. It’s offensive, it’s dismissive, it’s demeaning and — most importantly — it’s unnecessary. Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.The legal language in this filing is breathtakingly homophobic. If this is the Odubya administration's real legal opinion on gay marriage, that discriminating against gays is legal, constitutional, moral, and necessary, then I have an all new problem with this administration.John Aravosis at AmericaBlog is all over this, but I just wanted to note one example of the overreaching nature of this filing:
Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.
Motion to Dismiss, at pp. 27-28.
Also, thanks to the genius who decided to spend almost two whole pages breathing new life into the brief 1972 opinion by the Court dismissing the Baker v. Nelson marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). Motion, at pp. 28-30.
Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:
DOMA does not discriminate against homosexuals in the provision of federal benefits.
There you go.
The legal wording is so vague and sweeping that it in fact almost could be construed as an avenue to overturn Loving v Virginia. John Aravosis gives an example:
On the merits, plaintiffs' claims that DOMA violates the Full Faith and Credit Clause and their "right to travel" both fail as a matter of law. In allowing each State to withhold its recognition of same-sex marriages performed in other jurisdictions, Congress was merely confirming longstanding conflict-of-laws principles in a valid exercise of its express power to settle such questions under the Full Faith and Credit Clause. That Clause ensures that each State retains the authority to decline to apply another State's law when it conflicts with its own public policies. DOMA is fully consistent with that constitutional principle, as it permits States to experiment with and maintain the exclusivity of their own legitimate public policies — such as whether that State chooses to recognize or reject same-sex marriages.In other words, if a state wanted to say "We don't want to allow interracial marriages" then states have the right to do so. The brief tries to get out of this with the most craptastic smokescreen I have ever read:
Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11. No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. Personnel Adm'r v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979). In upholding the traditional definition of marriage, numerous courts have expressly rejected an alleged analogy to Loving.Got that? Loving was unconstitutional because it "advanced white supremacy" over minorities. The Defense of Marriage Act is fine because it does not advance "straight supremacy" over gays...which goes back to the really, really terribly disturbing part of the brief:
Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above — and as evidenced by the fact that plaintiffs have married in California — DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental — in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification.Sexual orientation, according to the Obama administration, is not a valid category of discrimination because the Obama administration does not recognize sexual orientation as a legal basis of discrimination.
Got that? You can't be a homophobe from a legal standpoint.
Astonishing. It's like they signed their names to a Bush DoJ memo. It's disgusting. Obama could have instructed the DoJ to say "We leave this matter to the states." But no...instead it went for the whole enchilada and came out and laid the legal groundwork for saying "We give no special federal recognition to homosexuality as a legal basis for protection from discriminatory actions."
I'm not gay. I am a concerned citizen of the United States of America. And I can smell bullshit. I'm calling Obama out on this...this is the most disappointing and outright evil thing I have seen this administration do so far.
[UPDATE] John Aravosis notes that the brief not only sounds like it was written by a Bush DoJ appointee and uses much of the same legal arguments the right made against gay marriage under the Bush administration, but it in fact really was written in part by a Bush DoJ appointee.