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).

The Supreme Court’s decision not to hear a case on DADT gave Rachel Maddow another opportunity last night to take President Obama to task on his promise to repeal the controversial policy. Rep. Rush Holt of New Jersey lends a hand, one of the original cosponsors of bill (H.R. 1283) which would overturn Don’t Ask, Don’t Tell. Watch:

Kate Kendell, Executive Director of the National Center for Lesbian Rights (NCLR), expressed hope and optimism this past week that the California Supreme Court would overturn Proposition 8, particularly in light of recent polling and the recent same-sex marriage victories in other states.

From Kendell’s blog:

With its groundbreaking marriage decision a year ago, the California Supreme Court set us on a path that – despite some setbacks – has led to one marriage victory a week in the past month: A first-ever unanimous state supreme court ruling in Iowa; a huge victory in Vermont, where there was strong enough support for marriage equality to override their Governor’s veto; and tremendous movement in the legislatures of New Hampshire and Maine, with similar progress likely in the months ahead in New York and New Jersey. The result has been a profound sea change in public opinion, including my own view of what the next month will bring here in California.

Just this week, a new Washington Post-ABC News poll showed “a sharp shift in public opinion on same-sex marriage. Forty-nine percent said it should be legal for gay people to marry” – an 11 point shift from a similar poll conducted by the Post just three years ago.

I have always believed the California Supreme Court should strike down Prop 8 because the law is so overwhelmingly on our side. But I feared that other factors might result in an adverse decision. That fear has now been replaced by hope as courts and legislatures – as well as public opinion – have moved sharply in our direction. The Court can cement its legacy by overturning Prop 8 and upholding our Constitution’s promise of equal protection. Or it can cause untold pain and hardship to our community and forever undermine the independence of the judiciary and the historic role of the courts in protecting minority rights.

I believe the Court will do the right thing.

In April I heard Kendell speak at an Equality California “looking forward” townhall, where she described what it would take to bring marriage equality back to California. The advice is worth repeating, even in light of recent victories and whether the courts overturn Prop 8 or not.

“Because if the 350,000 people we need to move to our side next time, whether it’s 2010 or whether it’s later, do not sense that we are part of their human family, they are not going to change their vote. So I don’t care how it happens, I don’t care what medium people use, but everyone in this room, has to be uncomfortable—Every. Single. F@cking. Day. Every single day you have to be made uncomfortable, whether it’s a conversation with a cab driver, or the person you drop off your dry-cleaning to, or your neighbor or a family member. If every single day you are made uncomfortable, and butterflies in the stomach, by the conversation that you are having, where you risk your privilege by talking about the reality of your life, we could win in 2010. But that is what it is going to require. And it’s you and every single person you know, that must be willing to have that conversation every single day.”

In the end its more about changing hearts and minds for a lasting victory than any court ruling or vote.

Frank Rich in yesterday’s NY Times seems to think so, where he guts the infamous NOM video “Gathering Storm” and explores the movement’s waning support in the face recent gay marriage victories in Iowa and Vermont.

Far from terrifying anyone, “Gathering Storm” has become, unsurprisingly, an Internet camp classic. On YouTube the original video must compete with countless homemade parodies it has inspired since first turning up some 10 days ago. None may top Stephen Colbert’s on Thursday night, in which lightning from “the homo storm” strikes an Arkansas teacher, turning him gay. A “New Jersey pastor” whose church has been “turned into an Abercrombie & Fitch” declares that he likes gay people, “but only as hilarious best friends in TV and movies.”

Yet easy to mock as “Gathering Storm” may be, it nonetheless bookmarks a historic turning point in the demise of America’s anti-gay movement.

What gives the ad its symbolic significance is not just that it’s idiotic but that its release was the only loud protest anywhere in America to the news that same-sex marriage had been legalized in Iowa and Vermont. If it advances any message, it’s mainly that homophobic activism is ever more depopulated and isolated as well as brain-dead.

And Rich closes with this zinger…

“It is justice, not a storm, that is gathering. Only those who have spread the poisons of bigotry and fear have any reason to be afraid.”

Read the full NY Times essay. And in case you missed Colbert’s hilarious take on “Gathering Storm…”