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But to be sure: They want it repealed!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“The administration believes the Defense of Marriage Act is discriminatory and should be repealed,” says DoJ spokeswoman Tracy Schmaler, but the agency must “defend federal statutes when they are challenged in court.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)

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