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DOJ to enforce same-sex marriage restrictions despite backing DOMA repeal

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Department of Justice (DOJ) said Monday that it was required to defend the 1996 Defense of Marriage Act (DOMA) as long as "reasonable arguments can be made in support of constitutionality" despite the administration's belief that the law is discriminatory. Arthur Smelt and Christopher Hammer, a California couple, filed suit alleging that DOMA, which denies federal recognition for same-sex marriages performed by states, unconstitutionally infringes on their civil liberties. Urging the US District Court for the Central District of California to dismiss the suit, the DOJ argued that the "Administration does not support DOMA as a matter of policy," but is nonetheless required to defend it against challenge if it survives rational basis review. In this case, the DOJ argued, congress was justified in allowing the matter to be resolved by the states before taking federal action. DOJ spokesperson Tracy Schmaler reiterated the position, saying that the department is not free to enforce only those laws with which it agrees, but must defend all federal laws until they are repealed or changed by congress. Last month, Massachusetts Attorney General Martha Coakley filed suit challenging DOMA on the grounds that it interferes with the state's right to define and regulate marriage. Massachusetts became the first state to allow same-sex marriages in 2004 and has since issued licenses to more than 16,000 same-sex couples. In March, a group of Massachusetts plaintiffs who are or have been married under the state's same-sex marriage law filed a similar lawsuit challenging DOMA. Although Maine became the fifth state to allow same-sex marriages in May, the Stand for Marriage Maine coalition announced last month that they have collected more than the requisite 55,087 signatures needed to put a veto on the November ballot, allowing voters to decide on the law. Also in July, a Washington, DC law took effect that recognizes same-sex marriages performed in other states or jurisdictions. Currently, New Hampshire, Vermont, Massachusetts, Connecticut and Iowa all allow same-sex marriage.

Full post as published by JURIST - The Paper Chase on August 17, 2009 (boomark / email).