The Government's New DOMA Brief

Evidently the protests and criticisms have hit home at the Civil Division of the US Department of Justice.  Today the Division filed a reply brief in the pending Smelt v. U.S. litigation in the US District Court for the Central District of California.  In Smelt, a gay male couple who married in California last year are seeking a declaration that the federal Defense of Marriage Act is unconstitutional.  They filed first in Orange County Superior Court, then the government removed the case to federal court, and filed a motion to dismiss. 

The motion to dismiss pled two alternative grounds: the first was procedural and jurisdictional, totally divorced from the merits of the underlying constitutional claim.  This is relatively uncontroversial, consequently.  The government argues that Messrs. Smelt and Hammer lack standing to seek a declaration of unconstitutionality against DOMA because they have not suffered any concrete injury from the statute - or at least haven't alleged one in their complaint.  They have not cited chapter and verse about how their California same-sex marriage was disrespected in another state because of DOMA Sec. 2, or that they have applied for and been denied some federal right or benefit because of DOMA Sec. 3.  The government reiterates these arguments in its reply brief, pointing out that the plaintiffs' response to the motion to dismiss on this point failed to undercut the government's arguments.

I haven't seen that responsive pleading.  But it would seem to me that a same-sex couple married in California could figure out a way to plead facts sufficient to achieve standing at least to challenge Sec. 3, just by arguing that they wanted to file a joint federal income tax return for tax year 2008 but could not do so because of Sec. 3.

Turning to the merits as an alternative argument, the government continues to argue that DOMA is constitutional.  This argument depends on (1) the idea that laws that discriminate against gay people need to be merely rational, and (2) the idea that it is rational for Congress to want a uniform definition of marriage when doling out benefits under federal law.  It's the old "neutrality" argument again, although now they know better than to use that word.  In the original motion brief, they argued that DOMA was not discriminatory, but was merely an attempt by Congress to be "neutral" in the ongoing controversy over same-sex marriage.  They no longer argue that DOMA is not discriminatory.  That would be pretty hard to do when your supremo boss, POTUS himself, has said publically that DOMA is discriminatory.  (And he issued a press release on Monday as well, reiterating the point that he believes DOMA is discriminatory and should be repealed.) But they persist in arguing that in light of the raging debate over same-sex marriage, it was rational for Congress to maintain the "status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states."  That strikes me as lame.  Maintaining a discriminatory status quo calls for a justification, an affirmative reason why, as a matter of public policy, the federal government should disrespect marriages from some states and not from others.

Anyway.... at least the most egregiously offensive stuff has been scrubbed out.