Michael C. Dorf

The Obama Administration Defends the Defense of Marriage Act

By MICHAEL C. DORF
Wednesday, June 17, 2009

Last week, the Justice Department filed a motion to dismiss a lawsuit by a married same-sex couple from California. The suit by Arthur Smelt and Christopher Hammer sought to invalidate the Defense of Marriage Act ("DOMA"), a federal law enacted in 1996 that has two key provisions: Section 2 authorizes states that do not themselves permit same-sex marriage to deny recognition to legal same-sex marriages performed in other states; and Section 3 defines marriage for purposes of federal law as encompassing "only a legal union between one man and one woman as husband and wife."

During the Presidential election campaign, Barack Obama announced his intention to sign legislation repealing DOMA. Yet in Smelt, his Justice Department vigorously defended DOMA, prompting LGBT rights groups to denounce the seeming change of heart.

Did the government's brief in Smelt betray the President's campaign promise? Not necessarily. One can think that a law such as DOMA should be repealed by Congress, but also think that it is constitutionally valid so long as it remains on the books. Moreover, the executive branch arguably has a duty to defend the constitutionality of duly-enacted statutes.

Nonetheless, as I shall explain below, the particulars of the defense mounted by the Justice Department in this case are troubling. Although the government's Smelt brief does not flatly violate candidate Obama's promise to seek DOMA's repeal, the LGBT community is right to view it as a betrayal of the spirit of that promise.

Procedural Hurdles

The Smelt lawsuit has a number of technical difficulties, and the government's brief rightly focuses on them. For example, the official complaint does not mention any plans of the plaintiff couple to travel outside California, thus calling into question their legal standing to challenge DOMA Section 2. Nor does the complaint identify specific federal benefits that one, the other, or both of the plaintiffs have applied for and been denied as a consequence of DOMA Section 3.

Likewise, the lawsuit names the United States as a defendant, despite the fact that the government cannot be sued in its own name absent a waiver of sovereign immunity. That mistake shows the sloppiness of the plaintiffs' complaint, as it would have been a relatively straightforward matter to sue a federal officer--such as the Social Security Commissioner--and ask for an injunction against his enforcement of DOMA Section 3. Notably, an earlier and nearly identical federal court lawsuit by this very couple (before they were legally married) was dismissed on procedural grounds in 2004.

Accordingly, the federal government may well succeed in having this latest suit dismissed for lack of jurisdiction. Had the Justice Department simply recited the procedural grounds for dismissing the case, the federal filing would have been unremarkable. Indeed, the LGBT community might even breathe a sigh of relief if this case is dismissed without any ruling on the merits; as John Dean noted in an earlier column on this site, there are reasons to worry that the time is not yet ripe for a federal court constitutional challenge to laws restricting same-sex marriage.

Yet the Justice Department did not stop with procedural arguments. It added an enthusiastic--and problematic--defense of the substance of DOMA.

The Disingenuous Claim that the Case Does Not Involve a Right to Marry

The government brief in Smelt begins with the reassurance that the "case does not call upon the Court to pass judgment . . . on the legal or moral right of same-sex couples . . . to be married." The brief then goes on to make variants of this point repeatedly. Yet the brief also makes substantive arguments which, if accepted as grounds for sustaining DOMA, would defeat a claimed right of a couple to marry under state law.

For example, the government argues that there is no "fundamental right" to same-sex marriage, that laws drawing distinctions based on sexual orientation are not "suspect" or "semi-suspect," and that laws restricting marriage benefits to heterosexual married couples are "rational." Although these points are made in the context of a defense of DOMA, they advance exactly the arguments that states have made--with mixed results--when defending their own laws against (mostly state) constitutional challenges to their own prohibitions on same-sex marriage.

Moreover, anyone with even passing familiarity with federal constitutional doctrine understands that if and when the Supreme Court of the United States is asked to rule on the constitutionality of same-sex marriage prohibitions, those challenging the prohibitions will press the opposite side of the very three claims that the Obama Administration is now making in its brief--contending that marriage, including same-sex marriage, is a fundamental right; that sexual orientation discrimination calls for heightened judicial scrutiny because sexual orientation is a suspect or semi-suspect classification; and that denying marriage equality is irrational.

Indeed, despite its repeated disclaimers, the government brief expressly asserts that there is no federal constitutional right to same-sex marriage, relying on, among other things, the Supreme Court's one-line summary dismissal of an appeal filed in 1972.

Perhaps most jarring is the government's claim that DOMA does not discriminate on the basis of sexual orientation: "Section 3 of DOMA does not distinguish among persons of different sexual orientations," the government asserts, "but rather it limits federal benefits to those who have entered into the traditional form of marriage."

In other words, the government contends that DOMA treats gay and straight persons alike because it offers federal marriage benefits to everybody--including gay persons--willing to enter into heterosexual marriages. Anatole France nicely ridiculed this kind of merely formal and perfectly useless "equality" when he wrote, "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Did the Obama Administration Have a Choice?

Why did the Obama Justice Department take such a firmly pro-DOMA position in Smelt? Here is the answer that John Berry, director of the Office of Personnel Management, gave for the Administration:

"This president took a solemn oath to uphold the Constitution of the United States and he does not get to decide and choose which laws he enforces. He has to enforce the laws that have been enacted appropriately and that he has inherited."

That is not entirely wrong. After all, many critics of President George W. Bush objected that he frequently used "signing statements" and other techniques to ignore, gut, or severely under-enforce those laws with which he disagreed, often citing a tendentious constitutional objection under the rubric of the "unitary Executive." If Bush was wrong to rely on his idiosyncratic constitutional views to evade the law, then isn't Obama right when he authorizes his Justice Department to mount a vigorous defense of a law with which he disagrees, namely DOMA?

Maybe not. In rejecting the Bush Administration's exalted view of the President's role in interpreting the Constitution, the Obama Administration may be going too far in the opposite direction. If a law were blatantly unconstitutional, then even though it had been signed by one of his predecessors, President Obama would have not only the right, but the duty, not to enforce or defend that law.

To be sure, under existing precedent, DOMA is not blatantly unconstitutional. Most of the arguments made in the government brief in Smelt are at least colorable.

Yet even that may be too low a standard. The Justice Department, when defending a federal statute, is not in the same position as a lawyer representing a criminal defendant. The criminal defense attorney has a professional duty to make whatever legal arguments she can to win her client's freedom. By contrast, the executive branch's defense of a federal statute invariably has a substantial policy element to it.

For example, the government says in its Smelt brief§ that DOMA Section 3 is justified by a Congressional decision not "to obligate federal taxpayers in [non-same-sex marriage] States to subsidize a form of marriage their own States do not recognize." That is not merely some position taken by any old litigant in the hope that it will be adopted by a court. It is an official declaration by the federal government that requiring all same-sex couples in the nation to subsidize marriage benefits for heterosexual couples only is what the brief terms "a cautious policy of federal neutrality," but that equality for same-sex couples would unfairly burden opponents of same-sex marriage. Such doublespeak is inconsistent in tone and spirit with the Administration's commitment to repealing DOMA.

In the end, Mr. Berry lets the Administration off the hook too easily because he does not seem to appreciate the real objection to the Smelt brief. The problem was not so much that the government defended DOMA, as it was the way in which the government did so. A president may well consider that his oath of office obligates him to mount a legal defense of laws that he dislikes. But he has a choice about how to mount that defense. In Smelt, the Obama Administration chose poorly.


Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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