Lamar Smith

Claiming that the Obama Department of Justice is not doing enough to defend the federal Defense of Marriage Act, U.S. Rep. Lamar Smith (R-Texas) 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 (ADF) announced Tuesday 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 (DOMA) is unconstitutional.

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

In its motions to intervene October 5, 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 (GLAD) 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 August 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, October 12, to file notice that they intend to appeal the decision in the state’s case, Massachusetts v. HHS. DOJ attorneys have until October 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.”