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July 20, 2011 5:26 PM

Q&A: Paul Smith of Jenner & Block on the Effort to Repeal DOMA

Posted by Victor Li

Jenner & Block litigation partner and veteran U.S. Supreme Court advocate Paul Smith has plenty of bona fides when it comes to gay rights. He led the charge to overturn statutes criminalizing homosexual sodomy, successfully arguing Lawrence v. Texas before the Supreme Court in 2003. Smith is currently representing married couples in Massachusetts (Gill v. Office of Personnel Management) and Connecticut (Pedersen v. Office of Personnel Management) in challenging the constitutionality of section 3 of the Defense of Marriage Act, which defines marriage as a union between a man and woman under federal law. The Massachusetts case is currently on appeal while Smith and attorneys from Sullivan & Worcester, Foley Hoag, and the Gay & Lesbian Advocates and Defenders (GLAD) filed a summary judgment motion in the Connecticut case.

With the Senate convening hearings Wednesday to examine the Respect for Marriage Act (which would repeal DOMA), The Am Law Daily spoke to Smith and asked him about the changing political landscape relating to same-sex marriage, as well as the continuing legal ramifications of DOMA.

What can we expect from the DOMA hearings? Considering the makeup of the House of Representatives, is it even likely that the Respect for Marriage Act would make it to the President's desk?

I don't think anyone thinks it'll pass the current Congress. But there's a lot of good that can come from this. The hearings are about making the record about the harm that DOMA does to married couples, and educating members of Congress and the American people about that harm. After all, I don't think most Americans recognize that you can be married under state law and treated as not married by the federal government.

President Obama's views on same-sex marriage have been scrutinized at length and liberal activists haven't always approved of his views on the subject. What do you make of how his views have evolved over the years?

He has not come out directly in favor of marriage for same-sex couples, but he has done a lot of things, like acknowledge that DOMA is not constitutionally defensible, sign the Don't Ask, Don't Tell repeal and now he's endorsing the repeal of DOMA.

Even though President Obama opposed DOMA, he continued to defend it in court until approximately five months ago. How did you view the president's pursuit of constitutional duties over his own conscientious objections?

The government's defense of the statute was in line with state law in the Massachusetts case. In the Cook case [Cook v. Gates, a "Don't Ask, Don't Tell" case that was decided by the U.S. Court of Appeals for the First Circuit in 2008] the court arguably holds that only rational basis scrutiny applies to discrimination based on sexual orientation. As a result, the government could defend the law on rational basis grounds in Massachusetts and could justify it with case law. In the Second Circuit, however, there's no such case, and the government then had to answer the question as to what is the right level of scrutiny and they couldn't make the argument that it should be rational basis without precedent to bind them. If you applied heightened scrutiny (which is the standard for gender discrimination) then there is no justification for DOMA. As such, the decision not to defend DOMA anymore was a lawyer's decision, not a political decision.

There seems to be a discrepancy in that some states do not allow same-sex couples to get married, but recognize lawful same-sex marriages from out-of-state for the purposes of divorce. We saw this in some states, like Wyoming. If a state recognizes same-sex marriage in one context, shouldn't it have to recognize it in other circumstances?

Not really. There's a long history of states having different marriage laws and states not recognizing marriages from [other] states because they violate their public policy. This arose with interracial marriages, but also included stuff like marrying your cousin, marrying a minor, and other things like that. There will always be variations by state. In fact, there's a good argument to be made that the "full faith and credit" clause of the Constitution doesn't apply with full force to marriages because they're not judgments of court, like divorce or adoption, which are covered by the clause.

One argument frequently made by opponents of same-sex marriage is that children are better off in traditional families. Is that a valid argument to you?

The argument makes no sense. With respect to heterosexual couples, there's no reason to believe that by allowing others to marry it would possibly interfere with their families or children. As for same-sex couples, marriage can only help and protect the welfare of the children in those families. In fact, DOMA hurts same-sex couples because there are significant financial consequences as a result of the federal government not recognizing their marriage. It costs people a lot in taxes, it can prevent them from having health insurance and other benefits. It also undermines respect for the marital status of the parents by their children. For instance, if a same-sex couple and their kids are going through immigration on the way back from a vacation in Europe, they're not allowed to fill out the family card showing that they're parents. Instead, they have to fill out separate cards.

DOMA was signed by President Clinton, a Democrat, with significant support from his own party. Can you talk about how drastically the political landscape has changed for the Democrats since 1996?

First of all, public opinion for equality for LGBT people has changed dramatically since 1996. Support for equal marriage rights is now the majority opinion in this country. Additionally, public opinion changed on other issues, like DADT, where there was strong support for the policy at first, to strong opposition now. Additionally, there have been important decisions like Lawrence and the marriages cases in Massachusetts and elsewhere which has reinforced the idea that equality makes sense.

Some Republicans, such as the Judiciary Committee's ranking member Charles Grassley, have announced their support of DOMA. Other prominent Republicans, such as Rudy Giuliani, have encouraged the party to get out of people's bedrooms. Has this issue become a wedge for the Republican party? How should the GOP deal with it?

As public opinion shifts, it'll become a loser issue for them to be against equality for gay people, not just on DOMA but for all issues. In fact, there have been some leading conservative Republicans who have spoken out in favor of marriage equality. If I were advising them, I'd say that they better start moving in the direction of treating people the same.

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