Published on
the San Francisco Chronicle

Gay Couple's Weapon in Lawsuit: Obama's Words

Bob Egelko

Gay couple's weapon in lawsuit: Obama's words Arthur Smelt (left) and Christopher Hammer are challenging a law that denies them federal benefits for their marriage. (Jebb Harris / The Orange County Register)

When Orange County newlyweds Arthur Smelt and
Christopher Hammer face off against the Obama administration over a law
that denies federal benefits and interstate recognition for their
marriage, they will have some potent ammunition: President Obama's own

An Aug. 3 hearing in federal court in Orange County is scheduled for
Smelt and Hammer's challenge to the Defense of Marriage Act, a 1996 law
that reserves for male-female married couples such spousal benefits as
joint federal tax filing, Social Security survivors' payments, and
sponsorship of an immigrant partner. The law also allows states to
refuse to recognize same-sex marriages performed in another state or

An attorney for the couple said he will argue that the
administration is on the wrong side of the case, in light of Obama's
latest comments.

"I'm not sure who the attorneys for the United States are representing," attorney Richard Gilbert said.

Pressed by gay-rights groups to live up to his campaign promise to
be a "fierce advocate" of equality for gays and lesbians, Obama
denounced the 1996 law Wednesday while announcing limited benefits to
the same-sex partners of federal employees.

Obama sees discrimination

"Unfortunately, my administration is not authorized by existing
federal law to provide same-sex couples with the full range of benefits
enjoyed by heterosexual married couples," the president said. "That's
why I stand by my long-standing commitment to work with Congress to
repeal the so-called Defense of Marriage Act.

"It's discriminatory, it interferes with states' rights, and it's time we overturned it," Obama said.

Obama also criticized the law as a presidential candidate. But as
president, he was speaking with more authority - and his statement that
the law was discriminatory appeared to contradict what his Justice
Department argued only six days earlier in Smelt and Hammer's case.

Justice Department's view

The Defense of Marriage Act "does not discriminate against
homosexuals in the provision of federal benefits," department lawyers
said in papers filed in U.S. District Court in Santa Ana. The 1996 law,
"understood for what it actually does, infringes on no one's rights,"
they said.

By reserving federal benefits for "those who have entered into the
traditional form of marriage," government lawyers said, the law adopted
"a cautious policy of federal neutrality towards a new form of
marriage" while respecting states' authority to define marital unions
for themselves.

Speaking for White House

In asking Judge David Carter to dismiss the suit and uphold the law,
the Justice Department was speaking for the Obama administration.

Gilbert said he will bring Obama's remarks to Carter's attention and
ask the judge to tell the government to clarify its position.


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"It appears to me that the president of the United States is making
it clear that the attorneys for the United States do not represent the
views of the administration," Gilbert said.

"I think they have a duty to withdraw their motion. I think they have a duty to join my side of the case."

The Justice Department stuck to its position Monday that it will
urge courts to uphold existing laws, including laws the president

"Until Congress passes legislation repealing the law, the
administration will continue to defend the statute when it is
challenged," the department said.

Partners since 1997

Smelt and Hammer, of Mission Viejo (Orange County), have been
partners since 1997 and spouses since July 2008, two months after the
state Supreme Court overturned California's ban on same-sex marriage.
The court preserved 18,000 such unions last month while upholding
Proposition 8, the November ballot measure that wrote the male-female
definition of marriage into the state Constitution.

Gilbert, who has represented the couple since they first challenged
the federal law in 2004, said Obama's comments "can have legal
significance" even though the president wasn't speaking in court or
giving a sworn declaration.

Experts doubt its impact

Two law professors had a different view, saying Obama's statements were noteworthy but probably had no legal effect.

"I would say Obama was speaking in a nonlegal manner ... more policy
oriented," said Vikram Amar of UC Davis. He said the president may have
used "discriminatory" as a term of moral condemnation, while the
Justice Department used a narrower legal definition to argue that the
law did not violate anyone's rights.

Politics versus law

Regardless, Amar said, the department can present its argument unless Obama forbids it.

"What the president said is politics. What the brief said is their
position on the law," said Jesse Choper of UC Berkeley. Still, he said,
a judge who decided to reject the government's argument could quote the
president's words.

Carter, Choper mused, might say something like, "Of course it discriminates, as President Obama said."


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