ACLU Statement on Latest Obama Administration Legal Brief on Defense of Marriage Act

August 17, 2009 12:00 am

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The following can be attributed to Matt Coles, Director of the ACLU Lesbian Gay Bisexual Transgender Project:

The brief filed by the Justice Department in Smelt v. United States, today shows that the federal government heard and understood some of the concerns raised by the LGBT community in response to the brief it filed in June. (Smelt is a lawsuit brought in federal court in California by a married same-sex couple asking the federal government to give them equal treatment in federal programs).

In today’s brief, the administration says that it believes the so-called “Defense of Marriage Act” is discriminatory. It might seem obvious that denying same-sex married couples all the federal protections that other married couples get is discrimination. But having the federal government finally admit it is a promising sign.

Equally important, the brief repudiates the argument that sexual orientation has anything to do with the ability to parent, saying:

“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.”

The federal government’s acknowledgement that sexual orientation has nothing to do with the ability to parent is an important step on the road to getting rid of irrational and damaging laws that separate children from their parents and that keep children in the foster care system when there are capable people ready to give them homes.

Sadly, in this brief, the federal government continues to insist that, as a general matter, discrimination based on sexual orientation doesn’t raise serious constitutional concerns. Virtually every serious legal scholar believes that position makes no constitutional sense. The Constitution is the foundation of the Rule of Law in America. When sexual orientation discrimination is treated as a serious constitutional concern, as the U.S. Supreme Court has indicated it should be, the Defense of Marriage Act is indefensible. The Justice Department should stop standing up for it in court.

Finally, in the brief the administration says DOMA should be repealed. We agree. It is time for the President to lead the way and work with Congress to get rid of this blot on the federal law books.

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