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Moms & dads not necessary, Justice Dept. says in brief

WASHINGTON (BP)–Following weeks of criticism from the homosexual community, the Obama Justice Department filed a legal brief Monday arguing that children do not necessarily need a mother and a father and that same-sex households are equivalent to traditional households for child-rearing.

The legal brief, perhaps ironically, was filed in defense of the federal Defense of Marriage Act, although the brief made clear that the administration believes the 1996 law is “discriminatory” and it “supports its repeal.” DOMA, as it is often called, gives states the option of banning “gay marriage” and prevents the federal government from recognizing such relationships.

It’s the first time the Justice Department has stated the administration’s opposition to DOMA, although Obama himself has said as much on several occasions, including doing so again Monday.

The brief was filed in U.S. District Court in California in reaction to a lawsuit by a California homosexual couple, Arthur Smelt and Christopher Hammer, who are “married” and are seeking to overturn the Defense of Marriage Act. The Justice Department filed its first brief in that case in June — a brief that was criticized by the homosexual community because it made, in several instances, conservative arguments regarding DOMA. In its latest brief in the case, the department backs away from some of those arguments and offers a significantly weaker defense.

The Justice Department argues the two men lack standing in the case.

“With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal,” the brief states. “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 as a policy matter, as it does here.”

Obama said during the campaign that he opposed the Defense of Marriage Act and he repeated that stance to homosexual leaders during a June White House ceremony.

“[T]he government does not contend,” the department’s brief states, “that there are legitimate government interests in ‘creating a legal structure that promotes the raising of children by both of their biological parents’ or that the government’s interest in ‘responsible procreation’ justifies Congress’s decision to define marriage as a union between one man and one woman.”

As support, the Justice Department cited five professional organizations that “have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

“… For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.”

The department’s position on procreation and child-rearing has frustrated attorneys with the Alliance Defense Fund (ADF), which is an intervenor in the case. ADF has made a defense of the traditional family an essential part of its briefs. For example, in July ADF and allied attorneys filed a brief where it stated, in part, “This inherently procreative nature of marriage is unique to opposite-sex couples, and thus the fundamental right to marry is confined to those relationships.” In fact, the Justice Department stated its position on child-rearing in response to ADF’s brief and made clear it disagreed with it.

“It is very disappointing that the [Justice Department] has rejected the idea that kids do best in homes with a married mother and father,” ADF attorney Brian Raum told Baptist Press. “They’ve taken the precarious decision of defending DOMA while at the same time claiming that it’s bad policy…. [I]t is certainly not optimal for the attorney who is defending a particular law to concede that their clients believe it’s bad policy. I think that’s detrimental to the case.”

Raum also disagreed with the Justice Department’s contention that “numerous studies” support same-sex parenting.

“This is an issue that is the subject of ongoing studies, but there are studies which indicate that kids do best in an environment where they have both their mother and their father,” he said. “… [Same-sex parenting] is a social experience which is in its infancy.”

Raum pointed to the 2006 “gay marriage” ruling by New York’s highest court, which said, “Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.” That same year, Washington state’s highest court said the state “was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.”

By rejecting such arguments, Raum said, the Justice Department has rejected “one of the most significant bases for DOMA and for the marriage laws around the country.”

“The state has a legitimate interest in promoting families where kids are raised with both their mom and their dad,” he said.

The White House released a statement Monday from Obama which said, in part, “While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.”

If DOMA is overturned then all 50 states could be forced to legalize “gay marriage.”

The case is Smelt v. United State of America.
Michael Foust is an assistant editor of Baptist Press. ToTo read how “gay marriage” impacts parental rights and religious freedom click here.

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  • Michael Foust