A reluctant Justice Department is defending the federal Defense of Marriage Act in a Boston court, even though President Obama is opposed to the law.
"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," the government said in a court filing today. "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 aas a policy matter, as it does here."
The federal law defines marriage as a union between a man and a woman. Six same-sex couples and three men whose husbands have died -- one of the deceased was retired congressman Gerry E. Studds -- have filed a lawsuit claiming the law treats them like second-class citizens and is unconstitutional.
Because of the law, the plaintiffs said they were excluded from using federal benefits opposite-sex couples can use, including health insurance programs for federal employees, retirement and survivor benefits under the Social Security Act, and the ability to file joint federal income tax returns.
Janson Wu, a lawyer for Gay & Lesbian Advocates & Defenders, which is representing the plaintiffs, said the group's legal team was prepared for the governmentís motion to dismiss and that it closely resembled the Obama administrationís response to a similar lawsuit filed by a Southern California gay couple. A federal court dismissed that suit on Aug. 24.
"There's nothing in the brief that we were unprepared to deal with, and there's nothing in the government's brief that addresses the fact the DOMA is the only exception in a long history of the federal government's deferral to the states' determination of who is married," he said.
In the California case, as in the Massachusetts case, federal lawyers wrote that the administration agreed with the plaintiffs that the Defense of Marriage Act is discriminatory and should be repealed. But Assistant Attorney General Tony West, who helped prepared both responses, wrote that prosecutors were obliged to defend the law until Congress moves to repeal or amend it.
West urged the court to dismiss the suits on grounds that the plaintiffs "fail to state a claim upon which relief can be granted."
Wu declined to say whether he was disappointed that Obama, who criticized DOMA while running for president, was defending it against legal challenges.
"We'll leave that to the political talking heads," he said. "We, of course, disagree vehemently with the Obama administration that DOMA is constitutional, and we are very prepared to make those arguments in court."
Martin Koski, a 67-year-old retired federal employee who agreed to be a plaintiff after the government refused to extend federal health benefits to his husband, James Fitzgerald, said he should be treated no differently from other federal retirees.
"We're married in the state of Massachusetts, and the federal government, as far as we're concerned, has chosen to disregard that and say we're second-class citizens," said the Bourne man, who married Fitzgerald two years ago.
Koski said he had voted for Obama in the election and was not upset with him.
"Congress makes the law, and until Congress decides to do something about it, I guess thereís not much the executive branch can do," he said. "If someone feels it's not right, we have to go through the [judicial] process, and, hopefully, it will get to the Supreme Court and they'll make a just decision for us."
Legal specialists have said the suit filed in March was the first serious challenge by a group of plaintiffs to the federal law passed in 1996 by Congress and signed by President Bill Clinton.
The lawyers who submitted the Boston brief included West and and Michael Loucks, the acting US attorney in Boston.
The government attorneys said the court should not act as a "superlegislature," sitting in judgment on the wisdom or fairness of a law, but must uphold a law "so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that Congress itself did not advance or consider. DOMA satisfies this standard."
The government attorneys argued that Congress was entitled to address social reforms on a piecemeal basis and provide benefits only to those who have historically been allowed to marry.
"Its decision to maintain the federal status quo while preserving the ability of States to grant marriage to same-sex couples is rational. Congress may subsequently decide to extend federal benefits to same-sex marriage, and this Administration believes that Congress should do so. But its decision not to do so at this point is not irrational or unconstitutional," the brief said.
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