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whoever smelt it

SHOCK: Obama’s Lawyers Just Admitted DOMA Is ‘Discriminatory’ (But Will Still Defend It)


But to be sure: They want it repealed! Filing a response this morning in Smelt v. United States, the Justice Department acknowledged the Defense of Marriage Act is terrible. But while it’s still on the books, they must defend it. Sound familiar?

It should. Sort of.

In June, Obama’s legal chums at DoJ defended DOMA in Smelt with a grotesque characterization of same-sex unions, going so far as to call them bad for the economy. It was a horrific display of government-approved discrimination sanctioning.

But now, a change in strategy, or at least messaging.

It’s not a full 180: DoJ is still standing by its reasoning that while DOMA is law, it must be defended in court. Which means the White House still wants Smelt dismissed — you know, so President Obama can work with Congress on a legislative repeal of DOMA, or whatever. But the Justice Department is at least acknowledging, in court papers, that the very law they’re charged with defending is a giant piece of crap.

“The administration believes the Defense of Marriage Act is discriminatory and should be repealed,” says DoJ spokeswoman Tracy Schmaler, but the agency must “defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences.”


The case (read it here), you’ll recall, involves Arthur Smelt and Christopher Hammer, who want to get married but for that 1996 law President Bill Clinton joined Congress in passing. (Of course, the ex-prez no longer supports it.) It was filed in California court in December, bumped up to federal court in March, and has been lingering there between motions ever since.

And as the president has been quizzed on his stance on DOMA, and his promises to kill it, his mouthpieces have repeatedly said Obama stands by DoJ’s defense of the law.

So where does this leave us? Not to far from where we began: The White House’s lawyers are still going to defend DOMA, even while actively admitting it’s discriminatory. We don’t want to create analogies out of thin air here, but understand the nuance: If America had somehow managed to pass a federal law saying Latinos could not have children, the DoJ would defend it; if Congress and the president OK’d a law saying blind folks could not adopt, the DoJ would defend it; if we had a law on the books saying blacks could not get married, the DoJ could defend it.

Have we put the Justice Department in an impossible position, where they are required to defend laws at all costs, even those that blatantly violate equal protections statutes? Do we demand the federal government not pick and choose which laws to uphold and which to ignore — to our own detriment?

This is you, America.

UPDATE: Obama’s follow-up statement: “Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.”

(Photo: The OC Register)

    • Fitz

      He is feeling a little of the heat– for all those Obamapologists who told the rest of us to stop complaining, I offer my middle finger. Pressure is effective.

      Aug 17, 2009 at 11:19 am · @ReplyReply to this comment ·
    • Bill Perdue


      Aug 17, 2009 at 11:43 am · @ReplyReply to this comment ·
    • Bill Perdue

      Oops. The memory ddidn’t clear.

      Here’s what I meant to post.


      It doesn’t appear to mean much more than that invitation to enjoy the fun and games at the White House ester egg roll.

      The only thing that’ll count is the repeal of Clintons DADT and DOMA and that seems unlikely in the extreme. Obama was able to steal a lot of the christer bigot vote away from the Republicans last fall and neither he nor the Democrats as a whole want to lose it by being identified with LGBT equality.

      Not that there was ever much danger of that happening.

      This seems to be just another diversion to keep our minds off being constantly run over by the O-bus.

      Aug 17, 2009 at 11:54 am · @ReplyReply to this comment ·
    • M Shane

      “Do we demand the federal government not pick and choose which laws to uphold and which to ignore — to our own detriment?”

      No , we have legal procedures set up by the Constitution. Some people got too immersed i the Idea that the President could act like a king or dictator from that barancle Bush. We seriously need to get back to demanding that the Constitution be heeded–as written, we can’t just pick and choose what provisions to obey and which not to. In the long run that shuld not be to our detrement. If we don’t believe that then be happy there are still illeghal armaments floating around so we can have another Revolution.

      Aug 17, 2009 at 11:55 am · @ReplyReply to this comment ·
    • wondermann

      This wasn’t completely about pressure… Let’s not get to ahead of ourselves… Oh wait, that’s what some of you been doing since he started

      Aug 17, 2009 at 1:18 pm · @ReplyReply to this comment ·
    • InExile

      @Bill Perdue: I sort of agree with you Bill as far as this just being another appeasement maneuver like the Easter Egg Roll and the Stonewall Cocktail Party. Both of these events produced no rights or anything of real value. It’s just more talk with no action. That said, we are still being run over by the Obus each and every day these discriminatory laws that he promised to repeal remain.

      Aug 17, 2009 at 1:22 pm · @ReplyReply to this comment ·
    • InExile


      Aug 17, 2009 at 1:35 pm · @ReplyReply to this comment ·
    • Michael W.

      @InExile: You mean all of those laws signed by your hero Slick Willie Clinton?

      Aug 17, 2009 at 1:43 pm · @ReplyReply to this comment ·
    • Fitz

      @wondermann: Yes, I have been getting ahead of myself for about 11 months now, since the robo call I got with his voice telling me that as a Christian, he knew that marriage was between a man and a woman.

      Aug 17, 2009 at 2:02 pm · @ReplyReply to this comment ·
    • Michael @ LeonardMatlovich.com

      A few roses planted in forty acres of bullshit!

      We’re being played…and this time TWO DIFFERENT WAYS. First, it’s no more true that they have to defend every existing law than it was the last time they claimed it to cover their Rick Warrenites-appeasing asses!!!

      SECOND: This “we have to defend the law crap” is as much about DADT as it is DOMA…about reinforcing their DISHONEST runaround about not issuing an Executive Order to freeze discharges by pretending they have no choice when, in fact, THEY KNOW another law passed by Congress TRUMPS DADT: 10 United States Code § 12305—“Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement,and Separation.”

      And for any of those who might think the “bad” part of it [when, actually, it’s all bad in the end] might have been written by holdover career attorney hired by George Bush pere and, yes, devout Mormon, W. Scott Simpson, as the last one apparently was, note, AGAIN, the name of his boss, Tony West, Assistant Attorney General, director of the DOJ Civil Division…and close friend of Obama after raising millions for him during the campaign….is at the top of this brief just as it was at the top of the previous gay legal lynching brief.

      West was an attorney in San Francisco during the Prop H*TE battle and records show him not giving a dime to defeat it.


      Aug 17, 2009 at 2:06 pm · @ReplyReply to this comment ·
    • Michael W.

      @Michael @ LeonardMatlovich.com: Why shouldn’t the Justice Department defend every existing law? And while you may have some examples of previous administrations who didn’t defend laws in court, do you have any instances of that taking place in Eric Holder’s Justice Department? Maybe it’s apart of his plan to restore order from the chaotic days of Ashcroft and Gonzales.

      If we can say that the Holder Justice Department refused to defend certain laws then I’ll agree it’s a hypocrticial stance. Otherwise what previous Attorney Generals let occur under their tenure has nothing to do with the way Eric Holder runs things.

      Aug 17, 2009 at 2:38 pm · @ReplyReply to this comment ·
    • Michael @ LeonardMatlovich.com

      @Michael W.:

      Just men do not defend unjust laws.

      The ILlogical conclusion of saying they must was the “Nuremberg Defense.”

      Denying marriage equality absolutely does NOT rise to the moral equivalency of genocide of Jews, Gypsies, et al., but their murderers were acting legally under German law at the time.

      Aug 17, 2009 at 2:53 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard

      It is legally wrong to state that the Administration has to defend a law which is unconstitutional. There are a number of cases on this issue, including several Supreme Court decisions. In addition, Reagan, Bush I, Clinton, and Bush II all refused to defend laws which they felt were unconstitutional. This is all a bunch of bullshit by Obama to justify his caving in to the right-wing religious zealots.

      Aug 17, 2009 at 2:55 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard

      For a detailed analysis of the issue of Obama’s defending an unconstitutional law, see:


      Particularly, read the comments since the author of the article is a quite conservative law professor.

      Aug 17, 2009 at 3:07 pm · @ReplyReply to this comment ·
    • InExile

      @Michael W.: Hillary didn’t sign those laws, her husband did so gays could serve in the military and to head off a Constitutional Amendment banning gay marriage in all states. Bill did the best he could do at the time which is more than Obama has done for us to date. At least Bill had the courage to take a stand, we are still waiting for the hopey changey one to take a stand on anything.

      Aug 17, 2009 at 3:28 pm · @ReplyReply to this comment ·
    • wondermann

      @InExile: after he got out of office

      Aug 17, 2009 at 3:51 pm · @ReplyReply to this comment ·
    • ProfessorVP

      It’s all pretty silly. G. W. Bush even used to invoke these “signing statements” when he signed a bill, essentially saying, regarding his intention to enforce it, “Ain’t gonna
      happen.” How many times did he do that? I forget. 80? 100?

      I hate to say it but I really wish Obama would be caught with his pants down with his “gay lover” the National Enquirer
      is always talking about. Of course, the National Enquirer
      always makes up things out of thin air. Like the John Edwards
      love child story. Okay… bad example.

      Aug 17, 2009 at 3:55 pm · @ReplyReply to this comment ·
    • Cam

      @wondermann: you said “This wasn’t completely about pressure… Let’s not get to ahead of ourselves… Oh wait, that’s what some of you been doing since he started”

      What a foolish assumption. The Administration went from backing the DOJ’s wording to now actively saying that the law is discriminatory, why would you assume that this was NOT all about pressure. No politician changes step half way through without it being about pressure.

      Aug 17, 2009 at 4:28 pm · @ReplyReply to this comment ·
    • schlukitz

      @Michael @ LeonardMatlovich.com:

      Point well taken, Michael.

      Aug 17, 2009 at 4:30 pm · @ReplyReply to this comment ·
    • Michael W.

      @InExile: Slick Willie took a stand alright… on financial regulations, which he gutted with his Republican buddies in congress and helped create the economic mess we’re in today. When it came to gays, however, he folded like a cheap suit.

      Obama has more bullshit to clean up from the Clinton presidency than that of Bush. I don’t know why Democrats are proud of him in any way.

      Aug 17, 2009 at 4:36 pm · @ReplyReply to this comment ·
    • ProfessorVP

      @Michael W.: Those actively involved in the game of politics know exactly what Bill signed off on in 1999, the horrible effects of which we still feel today. Those out of the loop haven’t a clue, and don’t want to be informed. All they need to know is that things seemed better then as opposed to now.

      Aug 17, 2009 at 4:48 pm · @ReplyReply to this comment ·
    • InExile

      @Michael W.: But Obama is not cleaning up anything. He has continued with signing statements, domestic spying, has fired only a few of all of the politically corrupt members of the justice department, has done nothing as far as financial regulation, in fact I saw an interview of someone from the the federal reserve where she stated they do not know what the banks did with the bailout money. Unfortunately for everyone, gays included, he is not doing much besides talking.

      Aug 17, 2009 at 7:30 pm · @ReplyReply to this comment ·
    • rudy

      Holder should simply set that standard that all arguments the DOJ makes to support DOMA must be truthful.
      This was not his standard defending DADT.
      Nothing in the Constitution says you must sell your soul to the devil to defend bad law.

      Aug 17, 2009 at 7:41 pm · @ReplyReply to this comment ·
    • Michael @ LeonardMatlovich.com


      Aug 17, 2009 at 7:46 pm · @ReplyReply to this comment ·
    • InExile

      @Michael @ LeonardMatlovich.com: That’s some picture, I’m speechless.

      Aug 17, 2009 at 8:48 pm · @ReplyReply to this comment ·
    • B.

      Just to comment on the following part of Queerty’s article:

      “The White House’s lawyers are still going to defend DOMA, even while actively admitting it’s discriminatory. We don’t want to create analogies out of thin air here, but understand the nuance: If America had somehow managed to pass a federal law saying Latinos could not have children, the DoJ would defend it; if Congress and the president OK’d a law saying blind folks could not adopt, the DoJ would defend it; if we had a law on the books saying blacks could not get married, the DoJ could defend it.”

      In fact, the state (Virginia in this case) did defend a law saying that black folks could not marry white folks, which the U.S. Supreme Court eventually ruled was unconstitutional.

      While DOMA is a bad law, being a bad law does not make it unconstitutional. The DoJ can legitimately offer a defense for that. What we should expect it to do is to offer the best completely honest legal argument, as opposed to bogus claims about gays somehow being a threat to the institution of marriage or any of the other rantings of the right-wing lunatic fringe.

      In defending a bad law, you can model the DoJ’s actions as that of a public defender – the defendant, even if guilty as hell, has a right to a fair trial and legal representation. In such cases, the public defender is serving a quality assurance function – making sure that the state has actually arrested the right guy by making sure that the state proved its case.

      Jerry Brown, for example, defended Proposition Eight against the claim that it was a revision to the California Constitution instead of an amendment. Brown also, however, offered an independent argument as to why Proposition Eight was not constitutional (that argument was rejected by the court).

      The DoJ is supposed to help uphold both the laws and the U.S. Constitution. It has a legitimate reason to defend DOMA if, in the opinion of legal experts, DOMA is in fact constitutional. The DoJ, however, should also be expected to point out any area in which DOMA might conflict with the constitution if the DoJ lawyers know of such a conflict and the plaintiffs have not brought that up.

      Aug 17, 2009 at 9:37 pm · @ReplyReply to this comment ·

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