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The San Francisco Chronicle

US Walks Fine Line on Anti-Gay-Marriage Law

Bob Egelko

Arthur Smelt (left in jacket) and Christopher Hammer, (rt) were photographed at the offices of their lawyer in Santa Ana. Two Orange County men take their legal fight to marry to the federal appeals court in Pasadena, further aggravating a rift between themselves and other gay-rights groups. Gay rights groups say the fight to legalize gay marriage should remain in state courts, but these two believe a negative ruling from the Supreme Court will prompt such outrage and expedite their hope to marry. (Photo: Jebb Harris / The Orange County Register)

The Obama administration tried Monday to defuse anger among gays and
lesbians over its defense of a law denying federal benefits to same-sex
married couples, criticizing the Defense of Marriage Act as it asked a
judge to dismiss an Orange County couple's legal challenge without
ruling on the law's constitutionality.

The administration "does not support (the law) as a matter of
policy, believes that it is discriminatory and supports its repeal,"
Justice Department lawyers said in written arguments in U.S. District
Court in Santa Ana.

They said the administration would defend any federal law if there
are "reasonable arguments" to uphold it. But this case "can and should
be decided on much narrower grounds," the department lawyers argued -
the plaintiffs' failure to show that the law has harmed them.

The couple have not sought any of the benefits the law withholds
from same-sex couples. Another suit is pending in Massachusetts by
couples who applied unsuccessfully for federal marriage benefits.

The law, signed by President Bill Clinton in 1996, denies joint tax
filing, Social Security survivors' payments and other federal benefits
to same-sex couples. It also allows states to withhold recognition of
same-sex marriages performed elsewhere.

The Orange County couple, Arthur Smelt and Christopher Hammer of
Mission Viejo, wed last year before California voters outlawed same-sex
marriage by passing Proposition 8 in November.

Smelt and Hammer, one of 18,000 couples whose pre-Prop. 8 marriages
were upheld by the state Supreme Court, contend the federal law
violates their constitutional right of equal treatment. A judge has
scheduled a hearing Monday on the government's request to dismiss the

President Obama denounced the Defense of Marriage Act as a candidate
and has called for its repeal since taking office, but has not pressed
Congress to act. In June, his administration infuriated gay-rights
advocates with its first filing in the Orange County case.

In that brief, Justice Department attorneys said the 1996 law did
not discriminate against gays and lesbians and was a valid means of
saving money that governments would otherwise spend on marital benefits.

In defending the law's authorization for states to deny recognition
to same-sex marriages, the Justice Department cited rulings allowing
states to reject out-of-state marriages between relatives.

Monday's filing contained no such language, and disputed arguments
by opponents of same-sex marriage that male-female unions are
inherently better for children. Instead, government lawyers said the
law was a rational measure to preserve the status quo during a
nationwide debate on the definition of marriage.

"The administration listened to our concerns and removed some of the
offensive approaches," said attorney Jenny Pizer of Lambda Legal, a
gay-rights organization. But she said the government "continues to
argue that anti-gay discrimination does not deserve serious
constitutional scrutiny."

The Justice Department's argument that Smelt and Hammer lack
standing to challenge the law because they haven't applied for federal
benefits or sought out-of-state validation for their marriage drew a
scornful reaction from the couple's lawyer, Richard Gilbert.

A man and a woman "don't have to apply for any federal benefits for
their marriage to get recognized as a constitutionally protected
right," Gilbert said.

He added that the Orange County couple's ultimate goal is an
initiative to divide California into two states - one of which would
recognize the fundamental right of gays and lesbians to marry.

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