LGBT groups have issued a joint statement today condemning the Obama administration’s challenge to DOMA. Press release below:

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Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed.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 Taskforce

If anything the statement doesn’t go nearly far enough. It doesn’t even address the cases citing incest and underage marriage that were used  to defend DOMA. As Pam Spaulding put it so well on Pam’s House Blend:

Friends, is this is the watershed mark, the line in the sand, the utter moral betrayal of this administration in black and white? Does this mean that we are not only expendable to this Administration, but  that it has decided we can also be vilified as a constituency at will and not receive any blowback? That’s balls. A brief with language like this could have been written by Liberty Counsel it’s so homophobic; that it’s written in legalese doesn’t blunt the arguments being made here. It will be used to cause lasting damage to future civil rights gains.

The 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 SFGate.com:

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).

Secretary of State Hillary  Clinton is preparing to release a memo soon advocating equal benefits to all State department employees. Some of the passages from the memo include…

“Historically, domestic partners of Foreign Service members have not been provided the same training, benefits, allowances and protections that other family members receive. These inequities are unfair and must end.”

“Providing training, medical care and other benefits to domestic partners promote the cohesiveness, safety and effectiveness of our posts abroad.”

“It will also help the department attract and retain personnel in a competitive environment where domestic partner benefits and allowances are increasingly the norm for world-class employers.”

“At bottom, the department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do.”

The memo which was obtained by AP has not yet been made public. Any policy changes will not take effect immediately however as they are  subject to an inter-agency review before being implemented. Currently, domestic partners are been denied benefits because of the Defense of Marriage Act (DOMA) which does not permit the federal government to recognize same-sex marriages.

Two new anti-gay marriage bills surfaced in Congress this week, targeting the recent DC Council vote recognizing same-sex marriages preformed elsewhere.

The first measure, H.R.2608 or the D.C. Defense of Marriage Act will “define marriage for all legal purposes in the District of Columbia to consist of the union of one man and one woman.” Introduced by Rep. Jim Jordan (R) of Ohio and Rep.  Dan Boren (D) of Oklahoma, the bill already has 33 co-sponsors, all Republican except for Mike McIntyre (D) of North Carolina.

Another measure, H.J.Res.54, “disapproves” of the DC Council’s decision to recognize gay marriages. Introduced by Rep. Paul Brown (R) of Georgia, the bill seeks to overrule the actions of the DC Council, which is within the prerogative of Congress which has 30 days to act on the decision.

Considering the strong Democratic majority in Congress, it is unlikely either bill will get out of committee, much less reach the House floor or land on the President’s desk.