Aug 21, 2009  |  By: Lou Chibbaro Jr.  | COMMENTS     

Gay rights attorneys praised the Justice Department this week for toning down its legal arguments against a lawsuit seeking to overturn the Defense of Marriage Act, but expressed concern that the administration continues to defend the law in court.

President Barack Obama has called on Congress to overturn the law, which, among other things, bans same-sex married couples from receiving federal rights and benefits related to marriage.

“With respect to the merits, this administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal,” says the nine-page Justice Department brief filed Monday in federal court in California.

“Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the department disagrees with a particular statute as a policy matter, as it does here.”

In a major reversal of the assertions it made in a brief filed in June for the same case, Smelt v. U.S., Justice Department lawyers also say the administration doesn’t contend that child rearing and “procreation” are important factors that should be considered by the court in deciding whether to overturn or uphold DOMA.

The earlier Justice Department brief outraged gay activists and civil rights organizations when it cited child rearing and procreation as reasons why a court should dismiss the lawsuit filed by Arthur Smelt and Christopher Hammer.

Some gay Democratic activists who supported Obama in the 2008 presidential election said administration insiders told them the president was not directly consulted on the wording of the earlier brief.

The two gay men say in their lawsuit that DOMA deprives them as a married couple of Social Security spousal benefits, the ability to file joint federal tax returns, and the ability to benefit from other federal marriage related rights.

Congress passed DOMA in 1996 and President Bill Clinton signed it over the strong objections of gay activists. It lets states refuse to recognize same-sex marriages performed in other states or countries and bars the federal government from providing any marriage-related rights or benefits to married same-sex couples.

“We appreciate that the Depart-ment of Justice has acknowledged that DOMA is a blatantly discriminatory measure that must be repealed,” said Kate Kendell, executive director of the National Center for Lesbian Rights.

“We are also very pleased that the brief acknowledges that DOMA cannot be justified by outdated and biased arguments based on procreation and childrearing,” she said. “The federal government’s recognition that same-sex parents are just as fit as heterosexual parents is significant and historic.”

But Kendell and other gay rights attorneys said they remain disappointed that the Justice Department continues to defend DOMA in court in this and at least two other cases.

The department’s use of a legal argument in its brief that laws resulting in discrimination based on sexual orientation, such as DOMA, don’t raise serious constitutional problems is also of great concern, said Kendell and attorneys for the ACLU and Lambda Legal, a gay litigation group.

“If there’s a disappointment in the brief it’s that they continue to think that sexual orientation discrimination — or continue to argue that sexual orientation discrimination — doesn’t require heightened scrutiny,” said Lambda Legal director Kevin Cathcart. “So that is a point on which we’re going to have to continue to disagree and going to have to convince them that heightened scrutiny is in order.

“But all in all, I am pleased with the distance that they have come since the first brief was filed.”

Joe Solmonese, president of the Human Rights Campaign, pointed to the brief’s citation of numerous professional and scientific organizations, including the American Academy of Pediatrics and American Psychological Association, refuting arguments by anti-gay groups that same-sex couples have a negative effect on child rearing.

“We are relived to see that in preparing this brief, the government familiarized itself with the fact that we are equal parents,” Solmonese said. “The numerous social science and child welfare authorities that the brief cites overwhelmingly confirm that the government was right to disavow arguments that it is in the interest of children for the government to discourage our families from forming.”

Solmonese added, “Now the president must take a leadership role in repealing DOMA. It is not enough to disavow this discriminatory law and then wait for Congress or the courts to act.”

In a statement released Monday by the White House, Obama reiterated his call for repealing DOMA.

“Today, the Department of Justice has filed a response to a legal challenge to the Defense ...