- The Washington Times - Tuesday, August 18, 2009

The Obama administration continued its half-a-loaf approach to gay rights issues Monday by filing documents claiming that federal laws banning same-sex marriage are discriminatory, even as the federal government continues to defend them.

In its nine-page brief, the Justice Department stated that the Obama administration opposes the 1996 Defense of Marriage Act as discriminatory and supports its repeal. Yet the motion also calls for the dismissal of a lawsuit filed by a gay California couple seeking to overturn the federal marriage law.

“This brief makes clear, however, that my Administration believes that the [Defense of Marriage] Act is discriminatory and should be repealed by Congress,” President Obama said in a statement, noting that the Justice Department “traditionally” files briefs defending the law “when acts of Congress are challenged.”

Justice Department spokeswoman Tracy Schmaler said the department “cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences.”

In this case, the department has an obligation to defend federal laws “as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here,” according to the brief written by Assistant Attorney General Tony West.

The administration’s halfway stance drew a similarly divided reaction from gay rights groups, which have criticized Mr. Obama for failing to take a more active role on gay issues, notably ending the military’s “don’t ask, don’t tell” policy.

Kate Kendell, executive director of the National Center for Lesbian Rights, said she appreciated that the Justice Department “has acknowledged that DOMA is a blatantly discriminatory measure and must be repealed,” but wanted to see more from the Democratic administration.

However, she said she and other pro-gay groups “remain disappointed that the Department of Justice continues to defend DOMA and to argue that laws that discriminate based on sexual orientation do not raise serious constitutional issues.”

She still accused the Obama Justice Department of selectivity against gays in applying discrimination law. “We believe that the Justice Department would be unlikely to make that argument in defense of a law that discriminated against women or other minorities,” she said.

The brief’s tone was far more conciliatory than a Justice Department filing in June that compared gay marriage to incestuous and underage relationships. That document ignited an uproar among gay activists, with many threatening to pull their financial support just before a major Democratic Party fundraiser aimed at the gay community.

Monday’s filing steered clear of arguments related to the merits of gay marriage and argued instead that the lawsuit should be dismissed because it lacked jurisdiction and standing.

The motion also specifically rejected the conservative argument contending that gay marriage weakens the family structure necessary for the safe raising of children.

“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 such interests to defend DOMA’s constitutionality,” said the brief, citing policies by the American Academy of Pediatrics, the American Psychological Association and others.

Joe Solmonese, president of the Human Rights Campaign, said he was “relieved” to find that the motion dismissed the child-rearing argument, but called on the president to do more than play defense on the marriage law.

“Now the president must take a leadership role in repealing DOMA,” Mr. Solmonese said. “It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act.”

Brian Brown, executive director of the National Organization for Marriage, accused the president of breaking a campaign promise made in his televised interview with California megachurch pastor Rick Warren.

“In a high-profile interview with Rick Warren, Barack Obama convinced millions of Americans he opposed gay marriage,” he said. “We are calling on the president to live up to his campaign commitment.”

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