In Court Brief, Obama Admin Endorses Homophobia, Denigrates Gay Rights

June 12, 2009

It has been a while since my last blog posting.  (So sue me!  I’ve been busy.)  Recent developments in a federal gay marriage case have prompted me to start writing again.  Secular Humanists and those opposed to religiously-motivated prejudice against same-sex couples have long favored granting them equal rights.  It seems that the Obama administration, through its attorneys at the Department of Justice, has endorsed outright homophobia and thrown the gay civil rights movement under the proverbial bus.

The   San Francisco Chronicle and   AmericaBlog have covered the   Obama administration’s brief in support of a motion to dismiss   Smelt v. United States , a lawsuit in federal district court challenging the constitutionality of the infamous "Defense of Marriage Act" (DOMA), signed into law in 1996 by Bill Clinton.  That law allows states to refuse to recognize validly performed same-sex marriages from other states.  (It also prohibits the federal government from recognizing same-sex marriages; for instance, gay spouses continue to pay the so-called "marriage penalty" tax derided by Republicans, because they are treated as single for federal tax purposes.)

The Obama administration’s brief reads like a loathsome chapter out of Karl Rove’s political playbook.

First, it defends DOMA’s constitutionality, arguing that DOMA was not motivated by anti-gay animus; that the gay community’s only two major victories before the Supreme Court,   Romer v. Evans (striking down a statewide referendum that would prohibit localities from protecting gay civil rights) and   Lawrence v. Texas (declaring unconstitutional laws that criminalized same-sex intercourse) should not be interpreted to give gays and lesbians rights in any other legal area; and that DOMA doesn’t discriminate against gays, because it also discriminates against straight unmarried couples.  This calls to mind Anatole France’s biting comment that "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

But it gets so much worse . . .

The brief also argues that courts should not consider   Loving v. Virginia (in which the Supreme Court struck down bans on interracial marriages) when looking at gay civil rights cases.  In the words of AmericaBlog’s John Aravosis, "He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level."

Here is the real kicker: the brief invokes laws against incest, adult-child marriages, and child rape to defend state laws prohibiting the recognition of gay marriages between consenting and loving adults:

  [T]he courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void"). . . .

Mr. Obama, have you no shame?