DOJ Boosts the Cause of SSM:

The Obama Justice Department today filed a reply brief supporting its motion to dismiss in Smelt v. United States, a constitutional challenge to DOMA filed a few months ago in a California district court. Readers may remember that back in June the DOJ supported its motion to dismiss with some merits arguments that justifiably angered gay-rights groups. The June brief opposed just about every constitutional argument gay-rights supporters have been making for more than three decades.

What a difference two months can make. While the DOJ hasn’t retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs’ lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job.

Consider this almost apologetic, but also uncontroversial, passage:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

There was nothing like this anti-DOMA language in the June brief. There was no mention of the administration’s anti-DOMA policy views. The DOJ labels DOMA a form of discrimination, although it doesn’t say what kind. Back in June, the DOJ went out of its way to argue that DOMA does not discriminate on the basis of sex or sexual orientation. In fact, the new brief makes no new argument for DOMA, and only vaguely says it supports the value of “federalism.”

Much more significantly, and to me surprisingly, it now appears to be the view of the executive branch that the social interests in child-rearing and procreation do not even rationally justify the exclusion of gay couples from marriage:

Unlike the intervenors here, the government does not contend that there are legitimate
government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman.

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Next comes this passage, suggesting that empirical learning has bolstered the case for gay and lesbian parenting:

Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological
Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

The idea that same-sex parents are inadequate or at least sub-optimal has been a major point in the public-policy opposition to SSM, and was used to support passage of DOMA. The DOJ now implies that DOMA is anachronistic, a holdover from a benighted time when we didn’t know so much about the quality of gay parenting. The parenting concern has also been a reason for deference by state courts: as long as there was still a legitimate debate over the quality of same-sex parenting, courts ought to defer to states’ judgments that traditional families are best. While the DOJ hasn’t exactly endorsed the view that the parenting debate is over, this passage certainly points us in that direction.

Finally, the DOJ brief shows that Justice Scalia’s dissent in Lawrence v. Texas is coming back to haunt the opposition to SSM. Recall that in Lawrence Justice Scalia warned that the Court was dismantling the constitutional structure supporting traditional marriage. Why? Because, Justice Scalia argued, if traditional moral opposition to homosexuality is no longer a valid basis for law, there remain no other good constitutional reasons to oppose SSM — even on rational basis review. Scalia specifically mentioned that gay couples’ inability to procreate — a critical point to “natural law” theories against SSM and to some courts — would be insufficient. Now comes the DOJ armed with arguments from Justice Scalia:

Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged
in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA (see here and here), and are understandably disturbed by the still-unabandoned arguments the DOJ made back in June, they should be delighted by the turn taken in this reply brief. It will serve the cause of SSM in state and especially federal courts for years to come.

(HT: Law Dork)

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