DOMA Do-Over

Monday, August 31, 2009

THE FIRST two paragraphs of the Justice Department's seven-page brief in Arthur Smelt and Christopher Hammer v. United States of America make it clear that the Obama administration learned its lesson in how to defend a federal law with which it doesn't agree without dabbling in noxious, outdated and irrelevant arguments. The plaintiffs seeking to challenge the constitutionality of the Defense of Marriage Act (DOMA), which prohibits federal recognition of same-sex marriages, simply do not have legal standing. The case is viewed by gay rights groups as such an imperfect vehicle that they want Smelt-Hammer dismissed.

Besides the question of whether the U.S. District Court for the Central District of California Southern Division has jurisdiction over this case, the government's case for throwing out the Smelt-Hammer challenge rests on two solid arguments. "Plaintiffs are married under the laws of California," the brief contends, "but they are residents of California and do not allege that any other state has refused to recognize their marriage." Thus, a claim of imminent injury has not been established. Also, because Mr. Smelt and Mr. Hammer "do not allege that they have applied for and been denied any federal benefits because of the operation of DOMA," injury has not, in fact, been established either.

These same sound legal arguments were made in an administration brief that was filed in June. But they were obscured by the firestorm over a legal citation of a case involving incest and the untrue assertion that DOMA didn't single out gay men and lesbians for discrimination. That mistake was not repeated. In fact, the third paragraph of the latest brief states plainly that "this Administration does not support DOMA, as a matter of policy, believes that it is discriminatory, and supports its repeal." We wholeheartedly support the Obama administration in this -- and eagerly await its push to change the law.

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