Civil libertarians have been outraged by President Barack Obama’s adoption of extreme Bush policies on secrecy and executive privilege, including his effort to dismiss public interest lawsuits and his Administration’s refusal to investigate war crimes committed by the Bush Administration. Now, Obama has filed to dismiss the case of Arthur Smelt and Christopher Hammer, who are challenging the 1996 Defense of Marriage Act (DOMA), which blocks same-sex couples from securing Social Security spousal benefits, filing joint taxes and enjoying other federal rights of marriage.

While Obama criticized the act and promised to seek a repeal of the law when he was complaining for gay and lesbian votes in the campaign, he is now arguing that it is entirely constitutional and should be allowed to stand. DOMA was passed with the support of Bill Clinton in 1996.

The Justice Department insists that it is only defending existing federal laws, though the Justice Department is not required to defend a statute that it believes is unconstitutional. Yet, if this were a separate but equal statute, the Administration would presumably not fight to preserve it. There are various ways for the Justice Department to back away from defending such a law if it believes that it is unconstitutional.

The Administration has been silent on seeking a legislative repeal of DOMA and backed away from initial promises to repeal the “don’t ask, don’t tell” policy in the military — leaving gays and lesbians frustrated on the two greatest issues affecting their community.

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