Ouch...

Gay marriage has been a major topic of discussion in the blogosphere since Prop8 ads starting appearing on television. It's a topic of discussion that I feel ill equipped for. I'm gay, but nowhere near being married and I have a difficult time finding my footing when it comes to this conversation. Despite my weary feelings, I've thrown my blog into the depths of this discussion here and here, and I'll do it again.

This week the United States Justice Department filed a motion to dismiss in the case Smelt v. United States of America, a legal suit that challenges the Defense of Marriage Act. The plaintiffs, Arthur Smelt and Christopher Hammer, are a gay couple legally married in California that are suing the Government for the entitlement of federal benefits allotted for married couples.

DOMA, the Defense of Marriage Act, was signed into law in 1996, when the conversation about same-sex marriage was beginning to present itself in the courts. As a means for maintaining status quo, President Clinton signed DOMA into law in order to preserve the already existing definition of marriage. The Defense of Marriage Act ensures that 1) states that do not authorize same-sex marriage do not have to uphold the same-sex marriages of other states (which is contrary to Article IV of the constitution which says that states have to respect the "public acts, records, and judicial proceedings" of other states) and 2) the federal government does not have to treat same-sex "relationships" as marriage for any purpose, even if the couple's state of residence recognizes same-sex marriage. In other words, states hold jurisdiction when it comes to the laws of marriage, but through DOMA, the federal government waved the responsibility of honoring that jurisdiction. **From a legal and unbiased perspective, DOMA, in it's inception, wasn't an unreasonable or inconsistent piece of legislation. Its purpose was to create the opportunity for a "wait-and-see" approach, to allow states the freedom to explore same-sex marriage without the federal government having to get involved or sidetrack their current agenda. It didn't take away the freedom of control that states have when it comes to the laws of marriage, and helped the more conservative states to not feel as threatened by the conversation...the "wait-and-see" approach was understandable, but let's not forget that 1996 was 13 years ago. The dating stage is over, it's time to make a decision: propose or move on.**

Arthur Smelt and Christopher Hammer are not fighting for the generalized equality of gay marriage, they are fighting for the equality of their already existing marriage. They're not asking the courts to make an ethical, moral, or legal decision on the validity of same-sex marriage, they're asking the courts to validate the federal benefits of their current marriage. The U.S. Government's response to the same-sex suit was to file a 54-page document that 1) calls for a motion to dismiss and 2) defends DOMA as a valid piece of legislation.

The brief reads like a High School speech and debate paper. It's unorganized. It lacks focus. It has no thesis. It's as if the assistant attorney general wrote down every thought that could possibly be construed as an argument and then accidentally submitted it to the courts. Here are some points in the brief that stood out to me...

-The brief constantly uses the word "experimental marriage" when talking about same-sex marriage. Nothing pisses me off more than when people in power label homosexuality as an idea, as if it's something that exists outside of a personal realm. Homosexuality wasn't made in a science lab. Equality for the gay community isn't something that you can test out, altering variables until the laws reach the solution that everyone's happy with. We are hardly an experiment and I don't buy the excuse that the wording is "legal jargon."

-The Justice Department's most legally backed argument is that marriage isn't a fundamental right and therefore denying someone the benefits of marriage isn't unconstitutional. Ummm....like in the same way that eating at a restaurant or drinking from a water fountain isn't a fundamental right? or sitting down on a bus isn't a fundamental right? I don't understand how people don't see that it's the same thing. It might not be a life and death issue, but that doesn't mean that the legislation isn't wrong.

-One of the arguments that Smelt and Hammer use in their case is that DOMA violates their rights under the equal protection law. The U.S. Justice Department's response to that argument is that DOMA doesn't discriminate against the "individuals" and therefore doesn't violate anyone's rights. A gay woman or a gay man can receive federal benefits, but same-sex "relationships" aren't acknowledged as marriage and so those "relationships" don't receive the same benefits. In what world is that valid logic? That it's not the "individuals" that are discriminated against, but the "relationships." Does that make it better? or is it that you can receive the federal benefits of marriage as long as you deny who you are...is that their argument? The brief also argues that gay individuals that get married are allowed the same benefits they received before they got married, "they remain eligible for every benefit they enjoyed beforehand" and therefore DOMA is not a violation of their fundamental rights. So, in other words, because gay "individuals" aren't treated as second-class citizens, we should just be happy with what we have. Stop complaining.

I'm not going to pretend to be politically naive. I understand that until the Obama administration decides, if they decide, to make a change to DOMA, they have to defend the current legislation. Obama ran a seamless campaign and has, assuredly, been aiming to run a seamless presidency, and a top-down change to legislation is a much more credible method of operation than a court battle ruling. I also understand that altering/abolishing DOMA isn't a priority for the administration and I don't fault them for that. But it's one thing to defend the legislation and motion to dismiss a case like this because it's not the right time or it's not how the administration wants to handle the issue. It's a completely different thing to write a 54-page document that explains in excruciating detail that it would be absurd for this new form of experimental marriage to be recognized by the federal government; that in no way does DOMA violate anyone's constitutional rights, and it's ridiculous that anyone would assume that it does. There was no need for that brief to be as vulgar and contemptuous as it was. There aren't very many times in my life when I feel inconsequential and this was one of those times.

P.S. I don't trust people that strive to appear perfect; I think that to actualize the appearance of perfection you have to sacrifice the things that brought you integrity in the first place. And I don't mean to cut down the president, but now might be the time for me to say, "told you so." It's more than likely that our president didn't read this brief before it was submitted, so it's hard to hold too much against him, but if he wants to keep his perfect-esque stature, he might want to send out a memo to get everyone on the same page. Or maybe he could hold one of those meetings in a movie theater. Or make a power-point presentation. Mr. President, I'm throwing out gold here.