White House Calls DOMA ‘Discriminatory’ in New Court Filing

The Obama administration filed new papers on Monday in the case against Arthur Smelt and Christopher Hammer, who are challenging the Defense of Marriage Act. While the Justice Dept. reiterated that it is obliged to defend DOMA, the brief also included a statement missing from the first brief filed in the case, which caused an uproar and a boycott of an LGBT DNC fundraiser in June.

This time, they mentioned that they believe the law to be "discriminatory".

Smelt AP: "Justice Department lawyers are seeking to dismiss a suit brought by
a gay California couple challenging the 1996 Defense of Marriage Act.
The administration's response to the case has angered gay activists who
see it as backtracking on campaign promises made by Barack Obama. In
the court papers, the administration urges the repeal of the law but
says in the meantime, government lawyers will continue to defend it as
a law on the books. The government's previous filing in the case
angered gay rights activists who supported Obama's candidacy in part
because of his pledge to move forward on repealing the law and the
"don't ask, don't tell" policy that prevents gays from serving openly
in the military. 'The administration believes the Defense of
Marriage Act is discriminatory and should be repealed,' said Justice
Department spokeswoman Tracy Schmaler, because it prevents equal rights
and benefits. The Justice Department, she added, is obligated 'to
defend federal statutes when they are challenged in court. The Justice
Department cannot pick and choose which federal laws it will defend
based on any one administration's policy preferences.'"


  1. Pender says

    I disagree that they have to defend this law, but at least this response was a lot better than the last one.

  2. Jeff says

    The latest gutless non-move by the Obama administration on gay issues. A lovely pin here, a nice speech there ….

  3. DR says

    Agreed that it’s gutless. The DOJ doesn’t have to defend this nonsense; every President since Carter has had their DOJ avoid certain issues. Obama could do the same if he were really a “zealous advocate”.

  4. says

    This is progress. It is still disheartening that the justice department views equality for sexual minorities as a “policy preference,” rather than something of any signicance.

  5. Brian in Texas says

    I agree that the law needs to be repealed, but the Obama Justice Department needs to defend the laws that are on the books.

    We don’t want what we had with Bush (a politicized Justice department) even though the politics may now be in our favor. I’m confidant that DADT will be repealed within a year and DOMA after that.

  6. says

    >>The Justice Department cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences.'”<< Oh please! Law firms pick and choose which cases they will defend all the time. The Supreme Court picks and chooses which cases they are willing to hear. If in fact the Justice Department believes that this law is unconstitutional, then they can do one of two things: 1) Choose not to defend this defenseless law or 2)File an Amicus curiae in this case. This is absolute bullshit that they feel somehow compelled to defend this crap. At this point, how vigorous will be the determining factor.

  7. says


    We’re being played…and this time TWO DIFFERENT WAYS. First, it’s no more true that they have to defend every existing law than it was the last time they claimed it to cover their Rick Warrenites-appeasing asses!!!

    SECOND: This is as much about DADT as it is DOMA…about their DISHONEST runaround about not issuing an Executive Order to freeze discharges by pretending they have no choice when, in fact, another law passed by Congress TRUMPS DADT: 10 United States Code § 12305—“Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement,and Separation.”

    RE Simpson: it is irrelevant whether he, as a holdover career attorney hired by Geore Bush pere and, yes, devout Mormon, wrote this brief, or the last one for that matter.

    His boss is Tony West, Assistant Attorney General, director of the DOJ Civil Division…and close friend of Obama after raising millions for him during the campaign….whose name was at the top of that last gay legal lynching brief.

    West was an attorney in San Francisco during the Prop H*TE battle and records show him not giving a dime to defeat it.

    By their labors shall ye know them.

  8. David B. 2 says

    I agree with Derek — more chess — slow but steady wins the course — Obama – we may not like his speed — but I imagine we will not be dissappointed in the outcomes.

  9. says

    BULLSHIT Part 2.

    LawDORK has his head so far up Obama’s ass he could play the theme from “Law & Order” on his tonsils.

    At least this time he didn’t quote the shameful rationalizations of Obama’s effective Godfather Lawrence Tribe to try to justify him.

    NOTA BENE: even DORK points out that this brief does NOT retract the most heinous parts of the earlier one.

  10. says

    Yes, Kugel. Michael@Leonard = Michael Bedwell = Leland Frances, who has at least learned to edit his posts to a length that someone not forewarned might actually read them, if not to tone down his bile at Obama.

  11. says

    For all you anti-O folks, would you rather there were no second brief that specifically says in an official DOJ document that DOMA is discriminatory and the argument based on procreation has no merit? Did we ever get anything that good from Clinton’s administration, for all his good intentions?

  12. JeffRob says

    Kugel- do you even need to ask?

    I agree with a lot of you. It’s a shame our equality is still a ‘policy preference’, but this pres is a chess player, and he’s our ally. This is strategic and smart.

    It’s far more important to me that Obama not drop the public option from his healthcare plan.

  13. BillyBoy says

    And as usual, Michael, you refer to heinous parts but can’t cite them because in fact the original brief never mentioned incest or pedophilia as reported and repeated.

  14. JeffRob says

    Billyboy, if I may, the brief, as filed, did mention incest and pedophilia, but only as a general example in the general context of the history of states not recognizing other states’ marriages. To find the passage offensive to the gay community is an ample stretch, at best.

    Not sure if you meant something different by ‘original’ brief, but just thought I’d put that out there.

    Bedwell Matlovitch Leland Whatever should not be blamed for his copious opinions, only for feeling the need to share them.

  15. JeffRob says

    ….To me. It’s an ample stretch to me, to call the DOMA brief offensive, specifically. I fully respect other people’s right to disagree. Because lord knows I know you do.

    So don’t kill me, anybody.

  16. says

    Jon Davidson, Director, Lambda Legal, June 2009:

    “Whether or not the administration felt a need to defend, there are many ways one can defend. The administration could have rested on the first two arguments raised in their papers (jurisdiction and standing) that these plaintiffs were not entitled to sue without arguing at this point that DOMA is constitutional. Doing that would not have waived those arguments. What they need to be asked is why they gratuitously went out of their way to make the outrageous arguments they unnecessarily included such as that DOMA does not discriminate based on sexual orientation or that the right at issue is not marriage but an unestablished right to ‘same-sex marriage’ or that DOMA is somehow justified in order to protect taxpayers who don’t want their tax dollars used to support lesbian and gay couples (while it’s apparently fine to make lesbians and gay men pay the same taxes but be denied the benefits provided heterosexual couples). Their public statements about the filing try to sidestep these points. They absolutely knew they did not need to make these additional arguments, especially at this time and consciously decided to do so. I am seething mad.”

  17. says

    “We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act against Smelt v. United States, a lawsuit brought in federal court in California by a married same-sex couple asking the federal government to treat them equally with respect to federal protections and benefits. The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.

    We disagree with many of the administration’s arguments, for example that DOMA is a valid exercise of Congress’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental. We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states.

    There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.

    When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.”

    Signed: American Civil Liberties Union
    Gay and Lesbian Advocates and Defenders
    Human Rights Campaign
    Lambda Legal
    National Center for Lesbian Rights
    National Gay and Lesbian Task Force
    June 2009

  18. says

    That was then, Michael, and we remember. Many of us were outraged, not just you and the Hillaryphiles.
    This is a second brief, and to pretend like it doesn’t have anything good in it is just blindness.

  19. says

    NO, then is also NOW, for as Obambot LawDORK pointed out…the Admin’s statements in the previous brief have NOT been retracted.

    The SUPPLEMENT has some flowers in it….sprouting out of 40 acres of bullshit.

    The ludicrous dishonesty of YOUR argument is that you try to paint the majority of the opposition as coming from Hillaryphiles when plenty of Obamaphiles like Andy Towle and David Mixner and Michael Aravosis, in fact the MAJORITY of the gay community, were rightfully pissed.

    EVEN Obama’s long time personal friend and the cochair of his national LGBT committee during the campaign, Stampp Corbin, who wrote:

    “I ask, ‘Mr. President how can you argue for the legality of DOMA, when you are for its repeal’? You really are talking out of both sides of your mouth and my community knows it.

    I expected obstacles to be placed in our path by our enemies; I just didn’t expect it from the President. I thought he was on our side; I still want to believe that.

    Unfortunately, I will see everything that the Obama administration does for LGBT Americans through the lens of the DOMA brief. Meaning, I will be waiting for the other proverbial shoe to drop, while praying President Obama delivers on his promises.” END QUOTE

    YOU were about as outraged as the classic battered wife, now ready to forgive your man Obama’s ass just because THIS time he didn’t beat you up as badly as he did the last time.

    Finally, Mary: who the fuck died and made you Queen of the Net Police? Or is this Kevinroad now?

    You’re AFRAID to read something written by someone who disagrees with you?