The U.S. Department of Justice Finally Gets It

I'm sure many folks reading this blog are aware that the U.S. Department of Justice riled many in the lesbian and gay legal community this summer by their over-the-top defense of the federal Defense of Marriage Act (DOMA). Instead of taking a measured approach to defending the federal statute because that was their job, without actually fighting for it, they launched a passionate defense of a statute to which Obama had openly and unequivocally declared his opposition during his campaign. The back-pedaling that followed the filing of their DOMA brief was embarrassing, and mostly falls squarely into the "lip-service" category. Obama has been truly disappointing in his failure to champion equality for lesbians and gay men and their families since taking office. He doesn't have to make gay rights his top priority. We understand that the economy is in a shambles and our military is fighting -- and dying -- in too many places. But there are simple things he could have done without any big hoopla. And he hasn't done them. (The obvious and most pressing example is to issue a stop-loss order re: the military -- something he could do today, as Commander in Chief -- which wouldn't overturn Don't Ask Don't Tell but would simply state that there would be no further discharges of gay soldiers and sailors under DADT while the issue of repeal is being studied. This one simple but courageous act would show that he actually believes in equality, and wasn't just trying to get our votes during the lead-up to the election.) Anyway, having failed to do anything for gay folks that really mattered up until now, the Obama Justice Department has finally filed a brief that is clear and outspoken and genuinely useful in the fight for equal legal treatment of lesbian and gay families. In their most recent filing in the California DOMA challenge (which probably is about to get dismissed for lack of standing of the plaintiffs, which is okay because there is a much better-organized and more convincing DOMA challenge already working its way through the courts out of Massachusetts, filed by Gay & Lesbian Advocates & Defenders in Boston), the U.S. Department of Justice said some striking things. Let me quote: "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." Now we're on the right track! But it gets much better than that. In a highly quotable and noteworthy passage toward the end of their brief, the government goes further: "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. ... 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. Furthermore, in Lawrence v. Texas ... 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." (Emphasis added.) Now we're talking!! This is the kind of statement that those of us in the legal community have been looking for from Obama. Granted, it is buried in a brief that ultimately defends federal DOMA. The administration has yet to fully repudiate the statute, which I hope it will do by refusing to defend the constitutionality of federal DOMA in the GLAD suit. But to see our President and Department of Justice stand strong for our children and families really does warm my heart, and renews my commitment to fight for equality for our families in courts around the country, bolstered by the knowledge that this is a fight we are getting closer to winning every day.