DOJ motion cites incest, underage marriage to dismiss DOMA challenge

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DOJ defends DOMAThe U.S. Department of Justice filed a motion late yesterday to dismiss a federal court case which calls for states to recognize same-sex marriages performed legally in other states, challenging the Defense of Marriage Act (DOMA). From

The motion, filed late Thursday, argued the case of Arthur Smelt and Christopher Hammer does not address the right of gay couples to marry but rather questions whether their marriage must be recognized nationwide by states that have not approved gay marriage.

“Under the law binding on this Court, the answer to these questions must be no,” the motion states.

The case was originally filed last year in California State Court before heading to federal court. It claims violation of a number of federal rights including the right to privacy, the right to travel and the right of free expression under the First Amendment.

The government’s filing said the suit would fail under each of those grounds. While it addressed each argument, it claimed the suit should be dismissed for lack of standing by the plaintiffs to bring the claim in federal court.

What’s more startling, as discovered by John Avarosis at AMERICAblog, the DOJ motion cites cases involving incest and underage marriage to defend DOMA. Relevant cases underlined in passage below:

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA.

It’s deeply upsetting that the DOJ is defending DOMA at all, much less citing cases involving incest and underage marriage in the process. I suspect that many who have been vocal supporters of the President, who have been asking for patience on LGBT issues, are now feeling betrayed… myself included.

We can be loyal only for so long, before we become apologists.

UPDATE: Today happens to be the anniversary of  Loving v. Virginia, which overturned the ban on interracial marriage. Oh the irony. (again from Americablog).

Post by ILO on 06/12/09 at 10:04 am