By Carrie Johnson
Washington Post Staff Writer
Tuesday, August 18, 2009
The Obama administration distanced itself Monday from legal arguments it had made earlier this summer, taking pains to remove and renounce language that had outraged advocates in the gay community in a case that centers on the constitutionality of a same-sex marriage law.
In a filing by the Justice Department, administration lawyers made it clear for the first time in court that the president thinks the 13-year-old Defense of Marriage Act, which denies benefits to domestic partners of federal employees and allows states to reject same-sex marriages performed in other states, discriminates against gays and should be repealed.
A lawsuit challenging the law, which is proceeding in a district court in California, became a touchstone this summer after leaders of the Human Rights Campaign and other prominent advocacy groups for gay men and lesbians complained to the White House about its slow pace in dealing with marriage, adoption, insurance and other hot-button issues important to the gay community.
Under decades of bipartisan tradition, the Justice Department is obliged to defend statutes passed by Congress, regardless of the political imperatives of the president. But gay activists registered their pique after government lawyers filed a brief in June that included language that appeared to equate same-sex marriage with incest and pedophilia. In another passage, the lawyers wrote that heterosexual marriage is "the traditional and universally recognized form."
Neither argument appears in a follow-up brief the Justice Department filed Monday. Senior trial counsel W. Scott Simpson embraced findings by researchers and prominent medical groups, including the American Academy of Pediatrics, the American Psychological Association and the American Medical Association, in saying "that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents."
And, in an unusual turn, Obama issued a statement Monday affirming that he would continue to seek repeal of the law, which has been upheld by federal judges in Florida and Washington state. The president said that he would "examine and implement measures that will help extend rights and benefits to (lesbian, gay, bisexual and transgender) couples under existing law."
Government lawyers continued to assert that the law passes constitutional muster, but they pointed to narrow grounds in seeking dismissal of the California case, Smelt v. United States. "The Justice Department cannot pick and choose which federal laws it will defend based on any one Administration's policy preferences," department spokeswoman Tracy Schmaler said.
Prominent gay rights advocates expressed satisfaction with the Justice Department's action Monday, as they turned up the heat on the White House to work with allies in Congress to overturn the 1996 law. Joe Solmonese, president of the Human Rights Campaign, called on the president anew to take a "leadership role" in repealing the Defense of Marriage Act.
"It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act," Solmonese said. "While they contend that it is the DOJ's duty to defend an act of Congress, we contend that it is the Administration's duty to defend every citizen from discrimination."
Robert Raben, a Justice Department official in the 1990s who owns a Washington lobbying firm, said that the administration had "obviously heard deep concern" from advocates who expressed indignation at the initial court filing.
"Between the Department of Justice and the White House, they did the best they could possibly do," Raben said in an interview. "It's their job to defend statutes, even lousy ones. The issue now becomes, let's get down to repealing DOMA."
The Obama administration, managing a busy and complicated legislative agenda, has not begun working with Congress to repeal the act, congressional and White House sources said. Dissatisfaction in the gay and lesbian community peaked in June, when some donors canceled plans to attend a Democratic National Committee fundraiser.
That month, Obama signed a memorandum that gives same-sex partners of federal employees access to long-term-care insurance benefits and allows civil servants to use sick leave to care for ailing domestic partners and children.
At a Washington conference in June, White House Staff Secretary Lisa Brown and vice presidential chief of staff Ronald Klain acknowledged dissatisfaction among the president's gay supporters.
"There's no question . . . that there were some cites in there that should not have been" in the earlier filing, Brown said at the American Constitution Society's annual conference, noting that this was her personal opinion. "The administration is trying hard; it's moving slowly," Brown said at the time.
Staff writer Scott Wilson contributed to this report.