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DOJ Files Reply Brief in DOMA Case — Evidence of the Power of Outrage

Today, the Obama Administration filed its reply brief in the California Smelt case, where gay couples have challenged the Defense of Marriage Act (“DOMA”). Let me start by giving away the punch line: It contains powerful statements on gay parenting and the weakness of the procreation argument that are likely to cause apoplexy in opponents of equality. This brief goes a long way towards undoing the legal and political damage that an earlier filing caused.

As you may recall, the Department of Justice’s first brief was in support of its motion to dismiss the couples’ claim, and generated disbelieving outrage (from me and many others, whom you can find referenced on my earlier post). The DOJ brief in that case made absurd and offensive arguments that, I wrote then, “seem to have been intended to set the course of judicial progress on gay rights back many years.”

Today’s brief, which you can find here, represents a significant step forward, and bears testimony to the power of strong but justified criticism.

First, what’s a reply brief? (Skip this paragraph if you don’t care.) It’s the last “salvo” in the flurry of briefs that a court sees before deciding a motion. In the case of a motion to dismiss, this means that the party seeking dismissal (here, the U.S.) first makes that motion, accompanied by a brief setting for its arguments that the case is without merit. The plaintiff then replies, attempting to refute these arguments, and urging the court to  allow the case to proceed. Then, typically (but not invariably), the moving party (again, the U.S.), then files a much shorter brief that responds, in a targeted way, to new arguments and to alleged misstatements by the other side — or just to have the last word on the contested legal issues. That’s the reply brief.

Here, short of withdrawing the motion to dismiss (which was almost certainly not going to happen), the Obama Administration essentially had three courses of action open to it: (1) Reiterate, defend, and refortify the initial arguments; (2) Decline to file a brief; or (3) File a brief that “walks back” from some of the rhetoric or arguments of the earlier brief, and rejects new arguments offered in support of dismissal. As you might expect, (3) is the best option — and that is what the Obama Administration did here.

In the short (seven page) brief,  DOJ starts by strongly urging dismissal on procedural grounds, stating that’s its wholly unnecessary for the court to reach the merits of the claim. This point was made, but with less conviction, in the earlier filing. Procedural dismissal would of course be best, as it would create no precedent potentially destructive to the cause of marriage equality.

The rest of the brief offers three very hopeful signals. First, there’s an unenthusiastic repeat of some (but not all) of the original arguments. Second, there is a direct statement that the Obama Administration believes DOMA is “discriminatory,” does not support it and urges its repeal. These are important statements, even though DOJ then states that it must defend validly enacted laws.

But it’s the third signal that’s the most encouraging, and potentially powerful. The DOJ takes on certain “intervenors” (interested third-parties who are given court leave to join the case so that otherwise unrepresented arguments will be made), who argued that DOMA’s support of opposite-sex only marriage is justified by the need to encourage procreation and the best setting for child-rearing. The Administration’s response is enough to reinstill a sense of hope, and warrants quoting in full:

Unlike the intervenors here, the government does not contend that there are legitimate government interests “in creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’ decision to define marriage as a union between one man and one woman. Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child  Welfare League of America have issued policies imposing restrictions on gay and lesbian parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.  Moreover, in Lawrence v. Texas, Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion — which, of course, is the prevailing law — because “the sterile and the elderly are permitted to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing, and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

Prepare for eruption of the right-wing volcanos.

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