Jun 19, 2009  |  By: Chris Johnson  | COMMENTS     

Arguments made in a Justice Department motion to dismiss a federal case against the Defense of Marriage Act have angered many LGBT Americans, but legal experts say the filing shouldn’t come as a surprise because the department is required to defend federal statutes.

Federal lawyers defended DOMA in their motion last week to dismiss Smelt v. the United States of America. The case was filed in federal district court last year. The motion to dismiss doesn’t necessarily mean that the court won’t take up the case.

The plaintiffs in the case, Arthur Smelt and Christopher Hammer of California, argue that their constitutional rights are violated through DOMA, which prohibits the federal recognition of same-sex marriage and allows states not to recognize these unions.

Robert Raben, who’s gay and was a former U.S. assistant attorney general for legislative affairs under President Clinton, said a motion to dismiss a case targeting a federal law isn’t unusual because “the Department of Justice doesn’t have standing to decide which statutes they will or won’t defend.”

“The statute sucks,” Raben said. “It’s disgusting. We’ve opposed it from day one. We’ll continue to oppose it, but the Department of Justice is doing what the Department of Justice does, which is defend the statute.”

Nan Hunter, a lesbian George-town University law professor, also said the Justice Department “almost always defends the constitutionality of federal statutes.”

“When a federal statute is challenged as being unconstitutional, the policy of the Justice Department, with very few exceptions, is to defend the federal law, even if there’s a new administration that doesn’t agree with it,” she said.

Raben said there are “tiny, tiny exceptions” to that rule “when the statute is otherwise unlawful,” but noted that the number of cases in which this exception has been applied are small and “you could put all of those in a thimble.” DOMA “doesn’t even come close” to fitting under these exceptions, he said.

“Executive branch agencies will enforce federal statutes unless they are clearly unconstitutional and the Department of Justice will defend statutes against constitutional attack whenever reasonable arguments can be made in their defense,” he said.

Nonetheless, many LGBT activists are fuming over the arguments made in the brief. In response, some have called for a boycott of a DNC fundraiser planned for June 25 (see related story on Page 12). Richard Socarides, a gay New York attorney who was a White House adviser under President Clinton, took issue with the extent of the arguments in the filing.

“As an attorney, and as someone who was directly involved in giving advice on such matters to another president, I fully accept the proposition that it is the Department of Justice’s role to almost always defend the constitutionality of statutes,” he said. “But certainly not in this case — not in this way. To defend this brief is to defend the indefensible.”

Rep. Jared Polis (D-Colo.), the newest openly gay member of Congress, said Wednesday that he was “shocked and disappointed” that President Obama decided to defend DOMA in federal court.

“My sadness turned to outrage when I read the Justice Department’s brief that not only defended this hurtful law but seemed to embrace it,” he said. “Comparing my loving relationship with my partner, Marlon, to incest was unconscionable coming from a president who has called for change.”

Polis said the administration made a “huge mistake” with the filing, and that if administration officials keep “making mistakes like this, they risk losing the support of the GLBT community forever, although I do not believe we are at that point yet.”

The 54-page document filed by the Justice Department says the federal courts should dismiss the lawsuit because plaintiffs lack standing to challenge DOMA.

The motion also contains some language that appears to demonstrate strong support of DOMA. At one point, the brief refers to the law as a “cautiously limited response to society’s still-evolving understanding of the institution of marriage.” The brief says that since gays have never been classified as a suspect class at a federal level, DOMA “need not be reviewed with heightened scrutiny.”

“In short, therefore, DOMA, understood for what it actually does, infringes on no one’s rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny,” the brief says.

Shin Inouye, a White House spokesperson, said the Justice Department “is defending the law on the books,” as is generally done with existing statutes.

“The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal ...