The ranking Republican member of the House Judiciary Committee has petitioned to intervene as defendant in two cases brought against the federal Defense of Marriage Act (DOMA), amid speculation that Obama administration Department of Justice officials would fail adequately to defend the pro-marriage law.
U.S. Rep. Lamar Smith (R-TX) has argued that Obama’s Department of Justice (DOJ) is not doing enough to defend DOMA, and therefore asked a federal court Tuesday for permission to intervene. Smith is being represented by the Alliance Defense Fund.
The motion argues that the act, which defines marriage under federal law as the legal union of a man and a woman, essentially has been left undefended because “the DOJ’s current DOMA defense, which happens to fit the current Administration’s policy preferences, is really no defense at all.”
The motion for the case Gill v. Office of Personnel Management notes that the DOJ’s defense of DOMA failed even to cite precedent on the matter set by the 1972 Supreme Court decision Baker v Nelson, and explicitly disavowed arguments that Congress had used to support DOMA in the past. “Under the new Administration, which strongly supports DOMA’s repeal, the DOJ traded these winning rationales for anemic arguments never recognized by any court in a challenge to DOMA or a similar state marriage definition,” states the ADF’s motion.
In addition, the Obama administration has been slow to file appeals to defend the law. The deadline for the Department of Justice to respond is Oct. 12, and Health and Human Services, a defendant in one of the cases, has until Oct. 18.
“The DOJ’s faint-hearted advocacy is especially alarming here because people have the right to rely on the government to make a good defense of laws passed by their congressional representatives,” wrote the lawyers. “The DOJ’s practical abdication of its own proven legal arguments, plus its ambivalence on whether it will even appeal, warrants intervention to ensure that widely supported Congressional legislation like DOMA receives a fair and vigorous defense.”
The group Gay and Lesbian Advocates and Defenders filed the lawsuit against the U.S. Office of Personnel Management on behalf of clients in Massachusetts who were denied federal government benefits reserved for couples recognized as married under federal law. Same-sex “marriage” is legally recognized in Massachusetts.
Massachusetts also filed its own lawsuit to dismantle the federal DOMA, Commonwealth of Massachusetts v. U.S. Department of Health and Human Services. The ADF is also filing a motion to intervene on behalf of Smith in that case as well.
Kris Mineau, president of the Massachusetts Family Institute, noted that the DOJ’s weak defense “has Elena Kagan’s fingerprints all over” it. Kagan, who was confirmed to succeed Supreme Court Justice John Paul Stevens in August, had oversight over the questionable defense as U.S. Solicitor General.