DOJ DOMA Case Filing Says Government Doesn’t Care If Parents Are Biological

The Department of Justice today filed its reply brief in Smelt v. United States, one of the legal challenges to the Defense of Marriage Act. Things look cautiously promising:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes 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.

More of interest for same-sex parents, however, is the passage from the DOJ that reads (my emphasis):

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’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). 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 opposing restrictions on lesbian and gay 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. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), 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 allowed 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.

Take that, Robert P. George.

Lawyer Nan Hunter at Bilerico observes:

The most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing. This puts the federal government on record as to these claims in a way that has never happened before.

Over at Law Dork, Chris Geidner opines that the DOJ filing could even have an impact on of In re: Gill, the challenge to Florida’s ban on adoption by gay men and lesbians. “Regardless of their consideration here,” he writes, “the DOJ statements certainly will be included in briefing for the likely appeal before Florida’s Supreme Court.”

I also have to wonder if the DOJ ruling will have an impact on any of the many custody cases in which a bio mom is trying to withhold custody from her ex-partner, the non-bio mom.

Much as some in the LGBT community have complained about the administration’s apparent lukewarm attitude to LGBT rights, I think today’s filing is a definite step in the right direction. It is a stronger and more wide-reaching statement than an earlier DOJ opinion on the case, which stated, “DOMA addresses a legitimate need for the federal government to adopt ‘a cautious policy of federal neutrality towards a new form of marriage'” (via Lisa Keen, Bay Windows).

I think it also goes to show that while parents remain a minority within the LGBT community, issues of parenting remain a key force in advancing our rights overall.