Republican Congressman Seeks to Protect Defense of Marriage Act in Court; Says Obama 'Not Adequately' Defending Law

By Matt Cover | October 12, 2010 | 6:31 PM EDT

Rep. Lamar Smith (R-Texas).

( – Texas Republican Rep. Lamar Smith has filed a motion in two separate cases seeking to intervene in defense of the federal Defense of Marriage Act (DOMA), arguing that to preserve the law he must defend it himself because the U.S. Justice Department may not do so.

Smith, the ranking member on the House Judiciary Committee, filed the motions in two related federal cases challenging DOMA, the 1996 law that defines marriage as a “union between one man and one woman.”

The DOMA has come under a constitutional challenge in two separate cases – Gill et al.  v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services – where it was ruled to have violated the 5th and 10th amendments.

Rep. Smith filed a motion on Oct. 5 asking both courts to allow him, as a member of Congress and a supporter of DOMA, to step in and defend the law, which has been upheld in prior court challenges.

“Representative Lamar Smith’s intervention will provide that defense and the adversity of interest that the case currently lacks,” Smith’s brief states. “He was one of the congressional representatives who overwhelmingly voted for DOMA and has been a vociferous supporter of it ever since.”

Smith states in his brief that the Justice Department (DOJ) has failed to mount an adequate defense based on proven legal reasoning, indicating that it has no interest in mounting a meaningful defense of DOMA. Smith also notes that the DOJ has failed to notify him and other members of Congress that it will not be appealing the lower-court decisions, something it is required to do under federal law.

“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,” Smith charged on Oct. 5.

On Oct. 12, the Justice Department filed a notice of appeal with the federal district court in Massachusetts concerning the two cases. However, this action by the Justice Department does not affect Rep. Smith's motion with the court, where the judge, Joseph Tauro, must still rule on the congressman's motion.

In his Oct. 5 brief, Smith pointed out that the Justice Department’s original defense was far from customary because it expressly stated that the Obama administration did not support DOMA at all and was merely mounting the perfunctory defense they are required to do.

That defense began with an admission that the government had no real interest in defending the law, something Rep. Smith said was “lackluster” and “inadequate.”

“Perhaps the strongest reason for granting intervention in this case is that the DOJ is not adequately defending DOMA,” the brief said. “The present Administration disagrees with DOMA as a matter of policy, believes it is discriminatory, and supports its repeal. The DOJ made this point as plain as possible on the first page of its opening brief. As the President has stated previously, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

Further, the DOJ expressly abandoned previous legal arguments used to successfully defend DOMA from earlier constitutional challenges. Those arguments are centered on the premise that the federal government has an interest in promoting responsible procreation through the vehicle of traditional marriage.

“In recent years, the DOJ has successfully defended DOMA in several jurisdictions,” Smith said. “[I]t did so based on arguments that other courts found persuasive in cases involving challenges to the opposite-sex definition of marriage. And most relevant here, it did so in defense of the reasons for which Congress passed the law: channeling opposite sex procreation into enduring unions where children are raised by their married mother and father.”

Smith blamed the current situation on the DOJ’s lack of a legal defense, saying that had the government adequately defended DOMA, the lower courts would have probably ruled in favor of the government.

He said it was clear that the Justice Department saw the president, and not the American people, as its client.

“There is no reasonable explanation why the DOJ would abandon such widely accepted arguments, but for the President’s policy preferences,” said Smith. “It is clear, then, that the DOJ considers the President its client, not Congress. When the client changed, so did the DOMA’s defense.”

“Therefore, congressional legislation should receive the benefit of a fair, consistent, and vigorous defense, regardless of who is in office as president,” said Smith. “But if the DOJ refuses to provide it because of the current administration’s policy preferences, then the Congressional members that voted for the statute and are charged with ensuring its defense (specifically Representative Smith in this case) should be allowed to intervene.”

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