Texas Republican seeking to intervene in marriage cases

Lamar Smith claims a ‘protectable interest’ in defending DOMA in Massachusetts lawsuits

Lisa Keen  |  Keen News Service lisakeen@mac.com

Claiming that the Obama Department of Justice is not doing enough to defend the federal Defense of Marriage Act, U.S. Rep. Lamar Smith, the Republican who represents Texas’ 21st district, has asked a federal court for permission to serve as an intervenor-defendant in two cases expected to come before the First Circuit U.S. Court of Appeals.

The Alliance Defense Fund announced Tuesday, Oct. 5,  that it had filed motions on behalf of Smith in the U.S. District Court for Boston, where Judge Joseph Tauro had ruled — in two cases — that one part of the federal Defense of Marriage Act is unconstitutional.

The Department of Justice still has until Oct. 12 and Health and Human Services has until Oct. 18 to give the court notice of whether the federal government intends to appeal those decisions.

In its Oct. 5 motions to intervene, the ADF claims the Department of Justice is mounting “no defense at all” for DOMA. The lawsuits in question challenge only DOMA Section 3, the section that limits the interpretation of “marriage” for any federal purpose to heterosexual couples.

“We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, in a press release. “If the Obama administration won’t defend marriage, we are ready and willing to do so.”

ADF claims the DOJ has failed to raise certain crucial arguments in defense of DOMA. For instance, it argues that DOJ should have noted that the U.S. Supreme Court’s “decision” in the 1972 Baker v. Nelson “was binding precedent that DOMA is constitutional.”

“Under the new administration, which strongly supports DOMA’s repeal, the DOJ traded these winning rationales for anemic arguments never recognized by any court in a challenge to DOMA or a similar state marriage definition,” states the ADF’s motion to intervene.

Actually, the Supreme Court did not issue a “decision” in Baker; it dismissed the appeal of a gay couple who had sought a marriage license in Minnesota.

Dismissing an appeal has more significance than simply refusing to hear the appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

There is dispute within legal circles as to whether that dismissal means anything today.

And Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders that brought one of the DOMA lawsuits, said the lawsuits here are not — like Baker — about marriage.

Bonauto also said she wasn’t surprised to learn of ADF’s motion to intervene.

“The ADF tries to intervene in everything,” said Bonauto. “We’re just surprised it took this long.”

Bonauto said her organization would oppose Smith’s motion to intervene “on multiple grounds.”

The motions to intervene will be decided by Judge Tauro sometime during the next few weeks or so. Bonauto said she doesn’t imagine the motions will be granted if the federal government decides to appeal the two cases.
The ADF motion claims that Rep. Smith has a “protectable interest” in the outcome of these lawsuits because, as ranking minority member of the House Judiciary Committee, he has a duty to see that federal laws “are fully defended and that adverse decisions are appealed.”

The motion says Smith asked Attorney General Eric Holder, by letter, on Aug. 9, whether DOJ intends to appeal the DOMA cases. DOJ had not yet made a decision, notes ADF.

“[I]t is difficult to understand to DOJ’s indecision,” says ADF’s brief.

Attorneys for the HHS have until Tuesday, Oct. 12, to file notice that they intend to appeal the decision in the state’s case, Massachusetts v. HHS. DOJ attorneys have until Oct. 18 to file notice of appeal in GLAD’s case, Gill v. Office of Personnel Management. GLAD’s Bonauto said it is common for the appealing party to give the court notice of its appeal in the last couple of days remaining to do so.

Thus, the timing of ADF’s motion could have the political benefit of appearing to prod DOJ and HHS to file notice. But Arthur Leonard, a long-time legal scholar on LGBT cases, says it’s also not unusual for Smith to file the intervenor motion.

“There have been occasions in the past where members of Congress have sought to intervene in order to present what they think would be stronger arguments than the Justice Department is likely to present, especially when the administration that is defending the statute is different from the administration that signed it into law,” said Leonard.

“But,” he added, “to the extent this is about getting particular arguments before the court of appeals, I can’t imagine that an appeal of the DOMA case won’t attract plenty of amicus briefs that would make all the arguments that Rep. Smith would want to make.”

© 2010 Keen News Service

This article appeared in the Dallas Voice print edition October 08, 2010.

—  Kevin Thomas

What does Ken Mehlman have to say about his former boss, anti-gay Texas Rep. Lamar Smith?

Congressman Lamar Smith, R-Texas

If we could ask Ken Mehlman only one question, it might just be something about his one-time boss Lamar Smith.

Mehlman, the formerly anti-gay former RNC chair who recently came out as gay, served as Smith’s legislative director in the 1990s. Smith, meanwhile, seems to be vying for the title of No. 1 homophobe in Congress.

• In August, Smith sponsored a resolution to condemn U.S. District Judge Vaughn Walker’s decision declaring Proposition 8 unconstitutional.

• Also in August, Smith announced plans to introduce federal legislation that would define marriage as between one man and one woman.

• And now, Smith is asking a federal court to allow him to intervene in a case to help defend the Defense of Marriage Act, according to Keen News Service. The Alliance Defense Fund announced Tuesday it had filed motions on behalf of Smith asking to intervene in two cases in which a U.S. district judge in Massachusetts declared DOMA unconstitutional. The ADF argues on behalf of Smith that the Obama administration isn’t doing enough to defend the 1996 law, which some gay-rights activists don’t think the administration should be defending at all.

Interestingly, Smith’s Democratic opponent in November, Lainey Melnick, touts her opposition to DOMA prominently in the issues section of her website:

“It will be up to the [Supreme Court] to decide if the Defense of Marriage Act violates the Constitution by forcing the states to discriminate against same-sex couples,” Melnick writes. “This decision could uphold that federal encroachment over the areas where states have sovereign jurisdiction, such as with marriage, is unconstitutional and leaves marriage in the hands of the states. This question is to be answered by the courts, not the Congress. But I do believe that the US Constitution provides equal rights for all people, including same sex couples who want to get married, who want to own property, who want to make medical decisions, who want to share insurance expenses, who want to immigrate, who want to work, who want to serve in our military, and who deserve to live their lives free of discrimination.”

Unfortunately, Smith represents a pretty safe Republican district in Central Texas, and Melnick is facing some long odds. But who knows, maybe Smith’s one-time legislative director, Ken Mehlman, has something to tell us about him.

—  John Wright