DOJ Defends DOMA Again

The U.S. Department of Justice Friday filed a motion to dismiss Gill v. Office of Personnel Management -- a legal challenge to the Defense of Marriage Act filed by Gay and Lesbian Advocate Defenders.

GLAD's legal director, Gary Buseck, said the new brief hewed closely to the last DOJ brief, filed in the California case Smelt v. United States, which also seeks to overturn DOMA.

"It looks pretty much like the Smelt reply," Buseck said. "They have honed their argument down to the notion that the federal government can take a wait-and-see, hands-off approach while letting the states experiment with this novel form of marriage."

In Buseck's eyes, that doesn't really address the crux of the Gill lawsuit.

"The federal government for the whole history of our country has deferred to the states to determine who is 'married.' DOMA is an unprecedented step away from that regime," he said. "The simple point of our argument is that now, Massachusetts has a single class of married people that includes different-sex couples and same-sex couples -- and yet the federal government now says part of that class of people we treat as 'married' and part of that class we refuse to treat as 'married.'"

Filed in March by GLAD on behalf of six same-sex couples and three men whose spouses have died, Gill specifically targets the third section of DOMA, which prohibits the federal government from recognizing same-sex marriages. The suit challenges the federal government's refusal to provide same-sex couples with spousal protections in Social Security, federal income tax, and federal employee and retiree benefits.

Friday's brief reiterated two major assertions DOJ made in its most recent Smelt brief: that DOMA is on its face a discriminatory law and that there's no justification for DOMA based on procreation or child rearing.

Buseck said GLAD and DOJ will now go through a period of responding to each other's briefs, and he speculated that the first hearing in the case probably wouldn't be held until early 2010.