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DOJ on DOMA
Jun. 20th, 2009 02:44 pmLast week, the Obama administration DOJ filed a brief defending the Defense of Marriage Act against a federal lawsuit by a same-sex couple married in CA. The brief caused a great deal of consternation in the liberal blogosphere. That led to me spending part of another train ride working my way through a legal document (that was a week ago, but I just found the time to write it up).
I'm not going to argue about whether filing the brief at all was a good idea, I accept that the DOJ is required to defend the US government when the US government is sued. But that's not to say that I don't have criticism for the content of some of the arguments.
(I have been informed that my last law-related post was rather jargon-y, so if there's something that you don't understand term-wise, please comment and I will try to explain. This one will hopefully be a little more straightforward, since the document in question isn't nearly as long.)
The case in question, Smelt and Hammer v. CA, US, and Does 1-1000 represents yet another attempt by the plaintiffs in question to challenge DOMA. The previous case, Smelt v. County of Orange, was rejected in federal court and rejected again on appeal, the case was dismissed due to lack of standing (since the defendants weren't married, they had no argument that DOMA had harmed them). After getting married under CA law, they decided to try again. They filed suit in federal court, asking for fees to be waived, and the request to get fees waived was denied, they filed the same suit in state court, adding CA as a defendant. The state court approved a wavier of fees. The DOJ filed a notice of removal to have the case moved back to federal court, then filed a brief in their defense. The brief argues as follows (quotes are from the brief unless otherwise noted):
( Rather Longer Than Expected )
Here's the most interesting and important bit, I'm leaving this outside of the cut because if there's one bit you read, it should be this one:
The brief argues that DOMA is just an exercise of caution on Congress's part, allowing states to experiment with novel forms of marriage without messing things up for other states or the federal government.
Consistent with our federalist system, which allows each State to "serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country," [citation], DOMA does not address whether a same-sex couple may marry within the United States... At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.
This is the brief's critical misstep. Same-sex marriage is not like some novel contract or financial instrument or corporate structure. "Same-sex marriage" is marriage. It's not a novel structure at all!
In fact, that's the whole point! States have experimented with novel legal structure in the same general domain as marriage, and the various cases that ruled such structures were insufficient in providing equal rights (including CA's In re Marriage Cases) did so precisely because they were not the same as marriage. CA, MA, et. al. did not "gay marry" these people, it married them. And you know what really doesn't respect "state sovereignty"? Picking through the group of people married by a state and saying "these ones count, these ones don't"!
( Footnotes in the Cut Also Cut )
I'm not going to argue about whether filing the brief at all was a good idea, I accept that the DOJ is required to defend the US government when the US government is sued. But that's not to say that I don't have criticism for the content of some of the arguments.
(I have been informed that my last law-related post was rather jargon-y, so if there's something that you don't understand term-wise, please comment and I will try to explain. This one will hopefully be a little more straightforward, since the document in question isn't nearly as long.)
The case in question, Smelt and Hammer v. CA, US, and Does 1-1000 represents yet another attempt by the plaintiffs in question to challenge DOMA. The previous case, Smelt v. County of Orange, was rejected in federal court and rejected again on appeal, the case was dismissed due to lack of standing (since the defendants weren't married, they had no argument that DOMA had harmed them). After getting married under CA law, they decided to try again. They filed suit in federal court, asking for fees to be waived, and the request to get fees waived was denied, they filed the same suit in state court, adding CA as a defendant. The state court approved a wavier of fees. The DOJ filed a notice of removal to have the case moved back to federal court, then filed a brief in their defense. The brief argues as follows (quotes are from the brief unless otherwise noted):
( Rather Longer Than Expected )
Here's the most interesting and important bit, I'm leaving this outside of the cut because if there's one bit you read, it should be this one:
The brief argues that DOMA is just an exercise of caution on Congress's part, allowing states to experiment with novel forms of marriage without messing things up for other states or the federal government.
Consistent with our federalist system, which allows each State to "serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country," [citation], DOMA does not address whether a same-sex couple may marry within the United States... At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.
This is the brief's critical misstep. Same-sex marriage is not like some novel contract or financial instrument or corporate structure. "Same-sex marriage" is marriage. It's not a novel structure at all!
In fact, that's the whole point! States have experimented with novel legal structure in the same general domain as marriage, and the various cases that ruled such structures were insufficient in providing equal rights (including CA's In re Marriage Cases) did so precisely because they were not the same as marriage. CA, MA, et. al. did not "gay marry" these people, it married them. And you know what really doesn't respect "state sovereignty"? Picking through the group of people married by a state and saying "these ones count, these ones don't"!
( Footnotes in the Cut Also Cut )
