DOJ’s DOMA Brief: the Spark that Ignites a Gay Backlash?

by Kilian Melloy

EDGE Staff Reporter

Tuesday June 16, 2009

President Obama had appeared to be a candidate concerned with equality before the law for America's gay and lesbians and their families. Even though he did not support marriage equality, Obama spoke of wishing to repeal discriminatory laws such as the 1996 "Defense of Marriage" Act, which does nothing to support marriage except for deny federal recognition of married same-sex couples.

Because of DOMA, same-sex couples wed in the six states where marriage equality is currently legal cannot access any of the federal rights, protections, obligations, and benefits of marriage.

Nor will the U.S. Census count gay and lesbian families in the 2010 census.

But though Obama had spoken out against DOMA while on the campaign trail, his administration's Justice Department last week filed a brief in support of the law, arguing that it does not, contrary to Obama's observations as a candidate, unfairly discriminate against gays and lesbians and their families.

The brief was submitted to the California court where a lawsuit by married couple Arthur Smelt and Christopher Hammer, who wed during the six-month window between the start of marriage equality in California and the revocation of marriage rights for gay and lesbian families via popular vote last year.

The Justice Department's brief shocked and infuriated many in the GLBT community, seeming at odds with the promises that Obama had made while a candidate and, at times, seeming to abandon the meticulously reasoned, soundly articulated style for which Obama has become known.

Indeed, the Justice Department's brief artificially puts married heterosexuals and married gays into opposition with one another and promotes the claims to which anti-gay organizations have long given voice, including, at one point, comparing same-sex marriage to incestuous relationships.

Recently, GLBT equality advocates have been expressing impatience with the inactivity of the Obama administration in terms of GLBT Americans and their needs.

Others had countered that the President was busy with multiple crises inherited from the Bush administration.

But the DOMA-friendly brief hit GLBT leaders and ordinary gay Americans alike with the force of a slap in the face.

Noted Politico's Ben Smith in a June 15 article, "The administration's filing last week in support of the Defense of Marriage Act appears to have swept away much of the work it had been doing to keep gay allies in line," with the Human Rights Campaign leading the charge.

An op-ed in the June 15 edition of The New York Times denounced the brief as "a bad call" and "disturbing," stating that, "The administration needs a new direction on gay rights."

The op-ed noted that, "In arguing that other states do not have to recognize same-sex marriages under the Constitution's 'full faith and credit' clause, the Justice Department cites decades-old cases ruling that states do not have to recognize marriages between cousins or an uncle and a niece."

Added the op-ed, "These are comparisons that understandably rankle many gay people."

As for the brief's composition, the op-ed took note of the "specious arguments and inflammatory language" to which the brief resorted in its attempt "to impugn same-sex marriage as an institution."

Leading GLBT lobbying organization Human Rights Campaign HRC, which has also been a target of criticism in recent years from dissatisfied gays, answered with force and conviction.

In a June 15 letter, HRC president Joe Solmonese rebutted, point by point, the administration's pro-DOMA brief.

Wrote Solmonese in his letter to the President, "Last week, when your administration filed a brief defending the constitutionality of the so-called 'Defense of Marriage Act,' I realized that although I and other LGBT leaders have introduced ourselves to you as policy makers, we clearly have not been heard, and seen, as what we also are: human beings whose lives, loves, and families are equal to yours.

"I know this because this brief would not have seen the light of day if someone in your administration who truly recognized our humanity and equality had weighed in with you.

"So on behalf of my organization and millions of LGBT people who are smarting in the aftermath of reading that brief, allow me to reintroduce us," Solmoese continued.

The HRC leader personalized the points he was setting out to make, relating the story of recognition long delayed. "You might have heard of Del Martin and Phyllis Lyon," Solmonese wrote.

"They waited 55 years for the state of California to recognize their legal right to marry. When the California Supreme Court at last recognized that right, the octogenarians became the first couple to marry.

"Del died after the couple had been legally married for only two months. And about two months later, their fellow Californians voted for Proposition 8," the ballot initiative that stripped away existing marriage rights for gay and lesbian families when a bare majority supported it at the polls.

"Across this country, same-sex couples are living the same lives that Phyllis and Del so powerfully represent, and the same lives as you and your wife and daughters," Solmonese wrote.

The letter underscored the very Americanness of gay and lesbian families, reading, "In over 99% of U.S. counties, we are raising children and trying to save for their educations; we are committing to each other emotionally and financially.

"We are paying taxes, serving on the PTA, struggling to balance work and family, struggling to pass our values on to our children-through church, extended family, and community.

"Knowing us for who we are-people and families whose needs and contributions are no different from anyone else's--destroys the arguments set forth in the government's brief," Solmonese continued.

"As you read the rest of what I have to say, please judge the brief's arguments with this standard: would this argument hold water if you acknowledge that Del and Phyllis have contributed as much to their community as their straight neighbors, and that their family is as worthy of respect as your own?"

Solmonese turned the force of his argument to the brief itself, noting, "Reading the brief, one is told again and again that same-sex couples are so unlike different-sex couples that unequal treatment makes sense.

"But the government doesn't say what makes us different, or unequal, only that our marriages are 'new.'"

However, Solmonese noted, "The fact that same-sex couples were denied equal rights until recently does not justify denying them now."

Solmonese zeroed in on passages that seemed to come straight from the anti-gay activists' handbook of the last three decades, observing that, "the brief seems to adopt the well-worn argument that excluding same-sex couples from basic protections is somehow good for other married people," and quoting from the brief itself, which read, "Because all 50 States recognize hetero-sexual marriage, it was reasonable and rational for Congress to maintain its longstanding policy of fostering this traditional and universally-recognized form of marriage."

Noted Solmonese of this passage from the brief, "The government does not state why denying us basic protections promotes anyone else's marriage, nor why, while our heterosexual neighbors' marriages should be promoted, our own must be discouraged.

"In other words," Solmonese went on, "the brief does not even attempt to explain how DOMA is related to any interest, but rather accepts that it is constitutional to attempt to legislate our families out of existence."

Solmonese then quoted from the brief a sentence that made the claim that DOMA is "a cautious policy of federal neutrality towards a new form of marriage."

Solmonese identified glaring examples of inequality given the backing of the federal government by the law. "DOMA is not 'neutral' to a federal employee serving in your administration who is denied equal compensation because she cannot cover her same-sex spouse in her health plan," he noted.

"When a woman must choose between her job and caring for her spouse because they are not covered by the FMLA, DOMA is not 'neutral.'

"DOMA is not a 'neutral' policy to the thousands of bi-national same-sex couples who have to choose between family and country because they are considered strangers under our immigration laws," Solmonese continued.

"It is not a 'neutral' policy toward the minor child of a same-sex couple, who is denied thousands of dollars of surviving mother's or father's benefits because his parents are not 'spouses' under Social Security law.

"Exclusion is not neutrality," Solmonese declared.

The HRC president went on to challenge the claim made in the brief that DOMA spared heterosexual taxpayers the burden of having to "subsidize" same-sex families.

Solmonese rebutted that notion on a number of points, starting with the most obvious: "These arguments completely disregard the fact that LGBT citizens pay taxes ourselves."

Explained Solmonese, "We contribute into Social Security equally and receive the same statement in the mail every year. But for us, several of the benefits listed in the statement are irrelevant--our spouses and children will never benefit from them.

"The parent who asserts that her payments into Social Security should ensure her child's financial future should she die is not seeking a subsidy," Solmonese stressed.

"The gay White House employee who works as hard as the person in the next office is not seeking a 'subsidy' for his partner's federal health benefits. He is earning the same compensation without receiving it," noted the letter.

"And the person who cannot even afford to insure her family because the federal government would treat her partner's benefits as taxable income--she is not seeking a subsidy."

Solmonese went on to note, "The government again ignores our experiences when it argues that DOMA... does not impair same-sex couples' right to move freely about our country as other families can," and quoted a passage from the brief itself, writing, "DOMA does not affect 'the right of a citizen of one State to enter and to leave another state, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.'"

Solmonese proposed a scenario that same-sex families do not find far-fetched, writing, "[A] same-sex couple and their child drives cross-country for a vacation. On the way, they are in a terrible car accident.

"One partner is rushed into the ICU while the other, and their child, begs to be let in to see her, presenting the signed power of attorney that they carry wherever they go.

"They are told that only 'family' may enter, and the woman dies alone while her spouse waits outside.

"This family was not 'welcome,'" Solmonese insisted.

The HRC leader turned his attention to the purpose of the brief itself, which was to affirm that DOMA does not violate the constitutional rights of gay and lesbian families. Wrote Solmonese, "As a matter of constitutional law, some of this brief does not even make sense," going on to quote from the brief:

"DOMA does not discriminate against homosexuals in the provision of federal benefits... Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage."

"In other words," noted Solmonese, "DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals."

Solmonese also took exception to the brief comparing gay and lesbian marriages to incest, a commonplace denigration used by religious and social conservatives.

"I cannot overstate the pain that we feel as human beings and as families when we read an argument, presented in federal court, implying that our own marriages have no more constitutional standing than incestuous ones," Solmonese stated, quoting from the brief, which read, "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," going on to cite a case in which the "marriage of uncle to niece, though valid in Italy under its laws, was not valid in Connecticut because it contravened public policy of th[at] state."

Letting that illustration speak for itself, Solmonese moved toward a summation, writing, "As an American, a civil rights advocate, and a human being, I hold this administration to a higher standard than this brief."

Echoing the argument of many pro-Obama GLBTs, Solmonese wrote, "In the course of your campaign, I became convinced--and I still want to believe--that you [hold a higher standard than the brief would indicate] too.

"I have seen your administration aspire and achieve. Protecting women from employment discrimination. Insuring millions of children. Enabling stem cell research to go forward. These are powerful achievements. And they serve as evidence to me that this brief should not be good enough for you.

"The question is, Mr. President-do you believe that it's good enough for us?"

Solmonese's missive received attention from mainstream media. The Wall Street Journal, in a June 16 article, called the letter "emotional," and suggested that Solmonese's "frustration... also stems from Mr. Obama's reluctance to move on other issues on [the HRC's] agenda, such as allowing gays and lesbians to serve openly in the military."

Despite the content and tenor of the brief, spokespersons indicated that the Obama administration still intends to see DOMA repealed.

The Wall Street Journal article reported that a spokesperson for the Justice Department, which filed the brief, was "defending the law on the books in court."

Added the spokesperson, "Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."

Shin Inouye spoke for the president in saying that Obama "remains strongly committed to signing a legislative repeal of DOMA into law."

But the episode is only the latest in a string of events that have raised the specter of the Clinton administration for GLBT equality advocates.

Then-President Clinton had entered the White House with words of equality for America's gays in uniform, but a backlash to the idea of fully integrating the military led instead to the compromise "Don't Ask, Don't Tell" measure, which critics say has been used unfairly to persecute both gays and women in uniform ever since.

And it was Clinton who signed DOMA into law in 1996.

Though Obama also spoke out against DADT as a candidate, his words from the Oval Office have been more cautious; the President has reportedly expressed no intention to do anything sweeping, and to be sure that he has the support of the military brass behind whatever action he does choose to take.

That action may not be soon, nor significant: a June 15 article at Advocate.com notes that, according to Senator Harry Reid, the Democratic Senate Majority Leader, there are no sponsors for such a repeal--and no intention on his on part to undertake sponsorship of such a bill.

The article indicated that action on the problem of gay soldiers being fired from the military despite exemplary service records and mission critical skills in the war on terror has devolved into a waiting game, with the Senate holding back until the House of Representatives takes up the issue or else the White House strikes down DADT through an executive order.

The White House, meantime, has indicated that reform for the military should come about by way of Congress, which created the ban on openly gay troops in the first place.

Obama also angered--and worried--gay supporters when he failed to address the California Supreme Court's finding that Proposition 8--the ballot initiative that rescinded existing marriage rights for gay and lesbian families--had not exceeded the scope of constitutional amendments, as challengers to the ballot initiative had argued, saying that the amendment revised the California constitution rather than simply amending it.

The silence from the White House convinced some GLBT leaders that the Obama administration was turning its back on the gay Americans Obama had courted while a candidate.

That, in turn, helped to prompt controversial actions, including a federal lawsuit against Proposition 8 and plans for a Columbus Day March on Washington that was organized by GLBT equality activist Cleve Jones.

One proponent of the March on Washington (MOW) planned by Cleve Jones was HIV/AIDS activist Shaun Strub, founder of Poz Magazine. At his Web site, David Mixner posted the content of an essay that Strub wrote outlining the need for the October MOW, in which Strub admitted, "I had been ambivalent about a march this fall," but then reckoned that the department of Justice brief had decided him: "I am now convinced that the time to debate whether to march or not is over."

Acknowledging the controversial nature of the MOW, which includes fears that any push for federal recognition and rights will result in a sweeping loss of the gains made by the GLBT community at the state and local level in recent years, Strub wrote, "We are a movement of free will; no one has to support or participate in any given endeavor."

However, Strub wrote, "The march will raise our expectations, broaden our vision and inspire hope."

Added Strub, "We can show that, to us, 'special rights' means that every person is special, that our movement is special because we so broadly embrace the struggles of all who are oppressed and that we are special because without us, the broader society would be bereft of something they so desperately need."

Meantime, GLBT leaders have openly lost patience. Mixner and Andy Towle, the blogger behind gay Web site Towle Road, have dropped out of an June 25 fundraising event meant to benefit the Democratic National Committee.

The fundraiser was described as an event courting gay donors; a $1,000 per plate dinner in Washington, D.C., the event is to be hosted by openly gay Representatives Rep. Barney Frank, Tammy Baldwin, and Jared Polis.

Blogger Pam Spaulding of Pam's House Blend encouraged readers to contact those same three members of Congress, given that none of them have as yet made a public statement on the Department of Justice's brief.

Text posted at Pam's House Blend quoted DNC fundraiser organizer Andrew Tobias, who responded to the DOMA brief and its attendant outrage in the GLBT community, saying, "If this debacle of a brief represented the President's views, I'd boycott too."

Tobias went on to say that he "Totally under[stood] all the hurt and anger," but added, "Still personally totally believe in the President. His Pride Proclamation, and his call to repeal DOMA, are genuine."

The blog posted the content of a letter putatively authored by Tobias, talking up the DNC fundraiser; however, the blog was not buying Tobias' exhortations.

"We need those in the community who have the resources to donate to the DNC to close their wallets until this administration stops the silence on our issues and makes it clear that the DOMA defense arguments are toxic to our civil rights struggle and commits to urge Congressional leadership to act by using his bully pulpit," read the site's text.

"Why should anyone donate to the DNC when this is the view of of the state of things held by powerful gay insiders?"

Other text at the site noted, "Organizers [of the DNC fundraiser], I'm told, are scrambling to get visible White House action on gay issues in advance of the June 25 dinner to prevent it from becoming a protest stage."

The blog added, "If you feel so inclined, please politely contact our out LGBT representatives on the Hill to ask them why they still plan to hold the event in the wake of lack of leadership re: DADT repeal and the horrible DOMA brief and 2) do they see anything problematic about financially supporting a party that runs for cover when our issues come up on the Hill."

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.