Defending DOMA?


Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children.
by John Aravosis (DC) on 6/12/2009 09:44:00 AM

Joe and I have been trying since last night to get a copy of the government's brief just filed in this case. This is not the GLAD case that we've written about previously, it's another in California. We just got the brief from reader Lavi Soloway. It's pretty despicable. And before Obama claims he didn't have a choice, he had a choice. Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional (we'll be posting more about that later). Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was "abhorrent."

AMERICAblog's got the whole motion embedded here. I'm going to sit down with it at lunch (it's 54 pages), but at first glance, Obama's Justice Department went way out of their way to defend an odious law. I don't get it.

Update [2009-6-12 12:4:13 by Josh Orton]: To clarify - I understand that our adversarial justice system places a duty on the current administration to defend the constitutionality of a law signed by the previous one. Yet it's less-than-satisfying to compare a defense of DOMA to a defense of other laws. And the language and precedent used in this motion seems excessive.

Tags: Barack Obama, doma (all tags)



Re: Defending DOMA?

Ok, I'm a law student, I've read through what I can find of the brief, and you are blowing it WAY out of proportion (or the person you're quoting is).

The brief DOES NOT compare gay marriage to incest and child marriage.  What it does do is point out that courts have upheld in the past the right of a state to refuse to recognize a marriage it considers contrary to its public policy.  It just so happens that the past instances of this involved incest and child marriage.  This is how legal briefs work, when you refer to past cases to apply to a new fact pattern, you are not claiming the two are equivalent.

Additionally, has it occurret to anyone that maybe the Obama Justice Department, like myself, really opposes DOMA but thinks that it IS constitutional?  Based on my studies of the Full Faith and Credit Clause, I actually believe quite strongly DOMA is a constitutional law.  I would love to see it repealed, but I don't want to see it repealed by the courts just suddenly making up new constitutional jurisprudence.

When the Clinton, Reagan and Bush administrations have claimed a federal law is unconstitutional, that was because they actually believed it was.  They also regularly defended laws they personally opposed but felt were constitutional.  I think that is what's being done here.  So, let's everyone calm down for a minute.

by bannana873 2009-06-12 07:46AM | 0 recs
Re: Defending DOMA?

Of course they're blowing way out of proportion. This iis the liberal blogosphere and they hate Obama, Pelosi and Reid worse than the Republicans do.

by spirowasright 2009-06-12 08:31AM | 0 recs
Re: Defending DOMA?

Yeah, everyone knows I regularly bash Reid.

by Josh Orton 2009-06-12 08:34AM | 0 recs

once the intial WTF reaction disappears and people actually read the damn thing and comprehend it, they tend to think more clearly.

The problem with the blogsphere is our fingertips work faster than our brains and we've clicked POST before we had a chance to comprehend.

DailyKos had a diary on this up, the initial comments were OUTRAGE!!! OUTRAGE!!! and then followed by a "oh, well, actually..."

I said it before and I'll say it one takes the liberal blogsphere seriously anymore after the primaries.

by DTOzone 2009-06-12 08:43AM | 0 recs

Unfortunately, the loudest voices in the Left Blogosphere, the Sirrota's etc, are pegged as speaking for the vast majority of us.

They don't.

Clearly, this shows WHY we are so well off having the adults in charge, us kids are too hotblooded to actually get anything done.

by WashStateBlue 2009-06-12 10:18AM | 0 recs
Re: Honestly

Man, oh man, I haven't been in here in a while, and I see it's much like Daily Kos, with commenters going out of their way to defend Obama. In fact, what happened at Kos was much like what's happening here: someone expresses (mild) protest, and the defenders swarm in.

Now, as for the substance: The DOJ has the right not to defend laws it thinks are unconstitutional. Is DOMA unconstitutional? Many people, including Obama's old teacher Lawrence Tribe, believe that Section 3, the part that defines marriage as an union between a man a woman, is unconstitutional. So it's would've required some courage and a good liberal take on the 14 Amendment for the Obama admin to refuse to defend the law.

Not surprising it didn't. But then the lack of surprise is disturbing in itself.

by david mizner 2009-06-12 10:37AM | 0 recs
Re: Oh dear, where to start

Where'd you come up with this:

"The DOJ only has that right on laws in which the constitutionality of the legislation has not been ruled on.'

Of course the Obama could've said "contrary to what you courts think, we think it's unconstitutional" but, as that would require an activist spirit and political courage that Obama lacks.

by david mizner 2009-06-12 10:53AM | 0 recs
Re: Oh dear, where to start

S/he makes up facts all the time.  Probably read it at Kos and repeated it without checking its veracity.  Especially when considering it betrays a complete lack of education in the law.

by orestes 2009-06-12 10:59AM | 0 recs
I have an education in law

and s/he is indeed correct...the constitutionality of DOMA has already been established, even though I for one disagree with the court's rulings on it...DOMA has been challenged five times I believed and all times the courts have upheld it. SCOTUS has refused to take the constitutionality into question, allowing it's Constitutionality to stand.

The DOJ is forced by law to defend the government's position and the government's position is that DOMA is Constitutional...that's not Obama's position, that's the position set by the United States Government by way of it's judicial branch.

Obama would be not better than Bush if he decided not to enforce the law because he doesn't agree with it. The simple solution to that is let Congress repeal it...but I guess lawbreaking is ok as long as it suits our interests.

by DTOzone 2009-06-12 11:18AM | 0 recs
If you have an education in law

you'll know that the Supreme Court said Plessy v. Ferguson was constitutional. If that were the law of the land, would you want Obama to defend it?

Plessy v. isn't Doma, you say, perhaps not, but then we're talking about the constitutionality of the law not about whether Obama has a right not to defend it.

by david mizner 2009-06-12 11:25AM | 0 recs

first of all, I can already see your bias and you keep saying "Obama" instead of the DOJ.

Second of all, yes, had it not been overruled by Brown, I would expect that the DOJ, even his DOJ, would defend it.

It doesn't matter what I WANT. What I would WANT is to see it overruled by the courts...and what I WANT is to see DOMA repealed.

by DTOzone 2009-06-12 11:32AM | 0 recs
Obama didn't write this

the DOJ did, they're seperate entities...or at least they're supposed to be.

by DTOzone 2009-06-12 11:13AM | 0 recs
Re: Obama didn't write this

Right, well that's a whole other question, the myth of the independent AG.

by david mizner 2009-06-12 11:18AM | 0 recs
So Bush wasn't wrong

when he used his AG for political purposes...or is it only ok for Democrats to do it?

I thought we wanted a return to Constitutional principles, including an independent AG.

by DTOzone 2009-06-12 11:19AM | 0 recs
Re: So Bush wasn't wrong

I didn't say this. I could certainly accept it and possibly cheer
if my president in rare circumstances, in the name of fundamental rights, refused to defend repressive laws.

I said the myth of the independent AG because I'm not convinced that Obama hasn't weighed in on any of these matters--are you?

by david mizner 2009-06-12 11:33AM | 0 recs
I sure hope he hasn't

because that would be grounds for impeachment. I cannot accept the President ever using the DOJ for political purposes, even if it something I believe it.

It's wrong...period.

by DTOzone 2009-06-12 11:35AM | 0 recs
Re: So Bush wasn't wrong

I could be wrong (but I don't think so) but the Constitution says nothing about an independent Attorney General. It doesn't even mention an Attorney General.

So, that's not a Constitutional principle.

It may be a good thing but it isn't a requirement of either the Constitution or the law.

The Attorney General is just another Cabinet position and as such reports to the President -- it is not independent of the Executive Branch it is part of that branch.

by cuppajoe 2009-06-12 05:45PM | 0 recs
Re: So Bush wasn't wrong

Well, not exactly - the Attorney General needs to be confirmed by the Senate, unlike, say, the White House Chief of Staff.  Or the President, for that matter.

by Jess81 2009-06-12 05:54PM | 0 recs
Re: So Bush wasn't wrong

True to a degree but that still doe not mean that it's an independent branch.

The AG Dept is accountable to the President. The  AG or others in that Dept. can be called before Congress to make reports, answer to actions, etc. because the Congress gets to CONFIRM not appoint people in that department of the Executive Branch.

But that does not mean it's an independent branch of the government. The AG is just a Cabinet position (and all Cabinet positions must be confirmed by Congress -- so does that mean they are all Independent? I'd like to see other Cabinet officials try to act independently of what any President wants! That would be interesting and a first.)

No Cabinet position is specifically mentioned in the Constitution.

by cuppajoe 2009-06-13 07:13AM | 0 recs
Re: Activist spirit?

And I repeat my question. Where do you get this?

"The DOJ only has the right to take a stand on the Constitutionality of a law when the Constitutionality of a law is in question."

Most scholars, experts, lawyers I've seen--including Holder--say the DOJ can refuse to defend laws under special circumstance--clear unconstitutionality, for example. I've never seen any of them mention the standard you mention, that Justice can only do this when courts haven't yet ruled. Should I ask you a 3rd Time?

As for the law, I'd like Obama to follow the law--the 14th Amendment.

by david mizner 2009-06-12 11:17AM | 0 recs
Common Sense first of all

Where in the law does the 14th amendment say anything about gay marriage. You're asking Obama and rhe DOJ to do the job of the courts...the rule that DOMA is unconstitutional...that's not their job and they can't do it...they can take the position that it's unconstitutional, but it's already been ruled constitutional, multiple times.

Where is the clear unconstutionality of DOMA? Where have the courts showed clear unconstitutionality?

You're asking the DOJ to be the judicial branch and that's worse than any abuse Bush ever did.

by DTOzone 2009-06-12 11:24AM | 0 recs
Re: Common Sense first of all

You act as if this is a settled question. It's not. Many liberal (pardon my French) think Section 3 of DOMA is unconstitutional. You might disagree--Obama apparently does--but don't present this as a settled question just because Bush-packed courts have ruled on it.

by david mizner 2009-06-12 11:28AM | 0 recs
Many liberal friends don't matter

unless they're sitting on a federal bench, david, you know that.

It isn't about what liberal friends think, or even what Obama thinks, Section 3 may very well be unconstitutional, but the courts have upheld it multiple times and it is law.

by DTOzone 2009-06-12 11:33AM | 0 recs
Re: Many liberal friends don't matter

Liberal friends?

I was talking about people like Lawrence Tribe, Obama's old teacher. Unlike you, I'm not willing to accept that the constitutionality of the law has been "established."

by david mizner 2009-06-12 11:37AM | 0 recs
Then put Lawrence Tribe on a court

look, I think upholding DOMA is judicial activism in it's worse, but Obama and the DOJ don't get to response by also acting like they are an inferior branch of government to the judicial branch.

I do think DOMA is unconstitutional, but the courts decided otherwise and the DOJ MUST respect the decision of the COURTS. They can only take a stand on constitutionality before the courts rule on it. This is basic high school level civics david.

This is why we elected Democrats, so we can replace judical activists with people like David Hamilton, Gerald Lynch and Sonia Sotomayor.

by DTOzone 2009-06-12 11:41AM | 0 recs
Re: Common Sense first of all

This is a tricky issue.  For those who are interested, I'd offer this primer from Professor Marty Lederman, who happens to be currently serving in the Obama Office of Legal Counsel:

The Washington Post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because SG Starr had a conflict.) The case in question was Metro Broadcasting v. FCC, and it raised very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes.

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever "reasonable" arguments can be made in support of such statutes -- i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches -- the Congress that voted for the law and the President who signed it -- have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.) (Quiz: Name the one case in which the President publicly concluded that a statute was unconstitutional and yet the SG nevertheless defended it in the Supreme Court. Hint: The SG in question was Erwin Griswold.)

What is (as far as I know) unique about Metro Broadcasting is that it appears to be the only case in recent memory that does not fall into any of these three categories.

There are no hard and fast rules, and these three exceptions are not an exclusive list - as the very example cited by Lederman demonstrates.  But there are sensible institutional reasons that the DOJ should generally defend a statute, as former Solicitor General Seth Waxman noted:

Vigorously defending congressional legislation serves the institutional interests and constitutional judgments of all three branches. It ensures that proper respect is given to Congress's policy choices. It preserves for the courts their historic function of judicial review. And it reflects an important premise in our constitutional system - that when Congress passes a law and the President signs it, their actions reflect a shared judgment about the constitutionality of the statute...

Let me provide an example some people chuckle to recall. In 1996, Congress passed a law known as the Communications Decency Act. The law was enacted without hearings or committee consideration. It imposed criminal penalties on anyone who made available to minors on the Internet material that was "indecent" or "patently offensive." The Act was challenged before two three-judge district courts. All six judges found the law facially unconstitutional in every respect. The Justice Department's Civil Division recommended appeal to the Supreme Court, and my predecessor as Solicitor General agreed. Having argued the case, I can confirm that there is nothing quite like standing in front of the Supreme Court to defend the constitutionality of a law that not a single judge has ever found to be constitutional in any respect. The United States did lose (although we garnered two votes for two-thirds of the statute). But our adversarial system of constitutional adjudication was served. The United States' briefs served the valuable purpose of articulating for the Supreme Court the strongest possible rationale in support of constitutionality - a much stronger case than anything that had been articulated by or to Congress. Those arguments in turn prompted the parties challenging the statute to hone and improve their own positions. And when the Court concluded that the statute should be invalidated, it did so with assurance that it had considered the very best arguments that could be made in its defense.

by Steve M 2009-06-12 11:35AM | 0 recs
Re: Common Sense first of all

Thanks for this.

When there are no hard and fast rules, there are no hard and fast rules.

Perhaps it's not wise for the Obama DOJ to refuse to defend the law, maybe it would be breaking with precedent to do so, it would certainly be out of character, but let's dispense with the lie that he doesn't "have the right to." He does.

by david mizner 2009-06-12 11:43AM | 0 recs
Sure he has the right to abuse his power

I would stop supporting him if he was wrong when Bush did, it's wrong if he does it.

by DTOzone 2009-06-12 11:47AM | 0 recs
Wrong Target, but sure is Republican of you folks?

Of course the Obama could've said "contrary to what you courts think, we think it's unconstitutional" but, as that would require an activist spirit and political courage that Obama lacks.

Yes, that's a great idea to say that, because that will play SO WELL in the legal community....

I mean, why do we need a Supreme Court at all?

Dave, thats an idea John Yoo and David Addinton would love, they just weren't dumb enough to declare it in public, as you seem to think it would be a good idea for Obama to do (Jesus, do you guys now ANYTHING about politics at all?)

First, it's not THE OBAMA is the DOJ, so if you want to whip out some feigned outrage, go blast Eric Holder.

Secondly, we just SPENT 8 years with a politicized DOJ, and REAL activist Judges like Clarence Thomas, who votes to strike down MORE LAWS then the rest of the liberal combined....

It's sad when Democrats think what the Republicans did was a great idea, and now its our turn.

by WashStateBlue 2009-06-12 11:20AM | 0 recs
Re: Honestly

My only defense of Obama is that, like Bill Clinton in the 1990s, he is the leader the national mood demands right now.

Maybe if you Blog Birchers were more interested in a mature leader and trying to understand how the process works instead of demanding a pony, I wouldn't be so rough on you.

by spirowasright 2009-06-12 01:22PM | 0 recs
Laurence Tribe Says:

I have no legal training but I can read what Lawrence Tribe said about this.  
To the Advocate

Below are excerpts from an interview conducted with Harvard professor Laurence H. Tribe, who firmly believes DOMA is unconstitutional and would like to see it overturned, and yet is grateful that the DOJ filed a motion to dismiss the legal challenge posed by the ninth circuit court case, Smelt v. United States.

Why Smelt posed a weak legal challenge to DOMA:

As someone who wants to see DOMA dismantled and invalidated, I would love it if this ninth circuit case would evaporate into the ether.

Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it's not anywhere near as strong as the one that was brought in the federal district court in Massachusetts [a suit filed by Gay and Lesbian Advocates and Defenders].

In an environment where the Supreme Court is still quite conservative, what makes a suit a strong one is that it finds a point of entry in which it's possible to invalidate a law in a number of its applications by using more of a scalpel that might appeal to five justices rather than a bludgeon that will almost certainly ask more of the court than it is willing to do.

What's strong about the Massachusetts case is that these are concrete situations of people who are legally married under the laws of states like Massachusetts or Vermont, and who are being discriminated against by the federal government with respect to federal benefits simply because they are same-sex couples. There's no other difference between them and other couples in that state, and the court could agree with that without accepting any of the broader theories advanced in the [Smelt] lawsuit in the central district of California, which is basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down.

A strategic Justice Department interested in a litigation strategy that has some realistic chance of success certainly would not have taken [the Smelt] case as the one in which the constitutional vulnerabilities of DOMA should be explored.

Defending congressional statutes:

Under the traditions of the solicitor general's office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law.

There certainly are cases where the government declines to defend the law, but those are few and far between. If congress were to pass a law that flew directly in the face of a binding Supreme Court precedent -- a law outlawing early-term abortion or a law providing for "separate but equal" schools -- the obligation of the Justice Department to the Constitution would trump its obligation to defend the laws of congress.

But DOMA is in a gray area where there are experts like me, who think it's unconstitutional, and you can find experts who hold the opposite view, and it's certainly not a slam-dunk.

There are ways for the president to get rid of DOMA. He can advocate for its repeal, he can eventually urge the solicitor general to join in a more surgical attack, but he certainly isn't obliged to go along with every plaintiff who brings a lawsuit.

The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration's position doesn't take that institutional reality into account.

It doesn't surprise me very much because I understand the frustration of some of the groups. They have lived under the burden of DOMA, of "don't ask, don't tell," for a long time, and they understandably hoped that this would be an administration that would side with them on these issues.

And I think the frustration of having to wait so long for a progressive and intelligent president who, nonetheless, occasionally does some things that people find disappointing on matters that cut deeply into where they live -- it's understandable that would lead to some strong reactions in this case. d90000.asp

Some emphasis added but you can select the choice bits for yourself & determine that Obama sucks anyways.  Others will chalk up the point to DTO, WSB, nrafter, Dracomicron and a few others I've surely missed.

by January 20 2009-06-12 08:10PM | 0 recs
Speaking of Lawrence Tribe...

...he thinks it's unconstitutional but that the DoJ should defend it: d90000.asp

by limulus 2009-06-12 11:02PM | 0 recs
It's their job

If the Justice Department didn't defend laws that the administration opposed, then laws passed by previous administrations would always be tantamount to worthless.

Correct me if I'm wrong, but weren't we pissed at the Bush Justice Department for politicizing the law?  Shouldn't we, you know, not be hypocrites?

by Dracomicron 2009-06-12 08:06AM | 0 recs
Re: It's their job

I have to agree. Damned Obama administration! Why couldn't they be bad at their jobs like the Bushies? Ahhh, the good old days of incompetence.  Oh. Wait.

by gas28man 2009-06-12 09:30AM | 0 recs
What it looks to me

is like they mounted a ridiculous defense of DOMA. Bush did something similar with an abortion law his DOJ was forced to defend...the defensive was so ludicrous, you can almost see his lawyers laughing about how there was no way the court would support it.

DOMA has already been ruled constitutional, a rationle I DO NOT agree with, so the DOJ is required to defend it's constitutionality. Hopefully the DOJ loses and reading this, it sounds like they're looking to lose too.

If this "defense" is egregious enough to move people into pushing for Congress to repeal the thing, then, hey, great. Personally, if I was someone in the DOJ who wanted to see Congress repeal this law, I would want to put to together the most disgusting incinerary defense I could find to incite controversy to push for it's repeal. Now is a good time to nail down the sponsors of a DOMA repeal, force them to take exception to this defense, and move on it.

Otherwise they never will.

by DTOzone 2009-06-12 08:37AM | 0 recs
I was just thinking that

From a lot of folks' reactions, it sounds like the defense is solidly built on Bush era doublespeak that doesn't hold up unless you've got a friendly court specifically looking to uphold an agenda.

Bush had that, Obama doesn't.  Defending the case on discredited theory might be their way of throwing it.

by Dracomicron 2009-06-12 08:43AM | 0 recs
Re: Defending DOMA?

While I am not a law student I agree that the issue of Constitutionality is not really Full Faith and Credit as congress has the right to prescribe the manner in which Full Faith and Credit is issued its simply one of enumerated powers. Congress does not have the power to regulate marriage under Article 1 Section 8. Second its is a flagrant violation of due process and the equal protection clause as it is a suppression of a "fundamental right" which was exemplified in Loving v. Virginia.

So while I agree that congress can limit the rights of Full Faith and Credit they can only do so in instances where Congress has the power.

by political22 2009-06-12 08:38AM | 0 recs
I agree

but the courts haven't taken it up yet, so the legislation remains, for the time being, Constitutional.

by DTOzone 2009-06-12 08:48AM | 0 recs
Re: Defending DOMA?

Until the Courts rule that there is a fundamental right to same sex marriage (which they have not; not long after Loving the Supreme Court made clear that the fundamental right it found was to a marriage that had an eye on procreation), Congress absolutely does have a right to tell states they don't have to recognize same-sex marriages from other states.

It would be unconstitutional if the law forbade states from doing so, but it doesn't.

We also need to think long and hard if we really want a Roe v. Wade style backlash that would come from a strong Court ruling in favor of gay marriage, when we're doing so well right now in terms of getting gay marriage implemented without having to make it a constitutional right.

by bannana873 2009-06-12 08:56AM | 0 recs
I don't think it's 'compare,' per se

It's just that pedophilia and incest are mentioned in the same document as homosexuality.  You know, the same way that Hannity can say that Obama legitimized Al Qaida in the Cairo speech when he said that we would hear some people defending them.  Because Obama referenced that Al Qaida had supporters, that means that Obama supports Al Qaida.

The meme of false equivilence has really gone too far.

by Dracomicron 2009-06-12 09:15AM | 0 recs
That is an exaggeration

but I do think, given the history of the entire gay rights struggle and the fact that "incest" has been used again and again, its completely understandable why people reacted that way.

That said, there ARE troubling aspects to the brief.  In a way I am sorry people brought up the incest issue because it distracts from some of the more problematic elements.

by KateG 2009-06-12 09:57AM | 0 recs
This is pretty troubling language

In short, therefore, DOMA, understood for what it actually does, infringes on no one's rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny.

by KateG 2009-06-12 09:39AM | 0 recs
The precedent is excessive?

What on earth is that supposed to mean?

by JJE 2009-06-12 09:47AM | 0 recs
Re: Defending DOMA?

The courts have always said that full faith and credit doesn't recognize states to recognize marriages from other states if they feel those marriages violate their public policy.  This is how I learned it in law school, long before gay marriage was even a national issue.  So Section 2 of DOMA does nothing more than restate the long-standing common law, and in fact, I've always considered it a boon because it refutes the common argument, "We need a national ban on gay marriage because otherwise one state can force everyone else to accept it."

Section 3 of DOMA, which denies federal benefits to gay couples, is a different issue and I certainly hope it gets struck down.  The complaints about this court filing seem to have more to do with the Section 2 arguments, though.  I think the complaints are a bit overblown simply because the law that pertains to section 2 is so clear and well-established.

Having said all that, I still think the people who argued Obama was better on gay rights than Hillary because he wanted to repeal all of DOMA and Hillary "only" wanted to repeal section 3 ought to eat a little crow at this point.  Not that I want to refight the primary or anything!

by Steve M 2009-06-12 10:03AM | 0 recs
I found this commentary interesting

This is from the Advocate (I recommend you read this) as its more balanced. I think its wrong to overreact  BUT I find its equally wrong to say that this brief doesn't deserve serious criticism. d89851.asp

Here is commentary from a former Clinton Advisor

"What is disappointing about it, is that it's not a sophisticated finely-tuned argument made after examining the president's prior statements," says Richard Socarides, a New York lawyer who served as an advisor to President Bill Clinton on LGBT issues.

Socarides said the scattershot nature of the brief suggested that it had not been reviewed at "the highest levels" of the department. While he called that "inexcusable," he found a glimmer of hope in the spokesperson's remarks.

by KateG 2009-06-12 10:06AM | 0 recs
OBAMA? WTF are you talking about?

Jesus, didn't we just go through 8 years of screaming that Bush politicized the DOJ?

Josh, you are completely dead fish flopping WRONG about this, and you should kill this diary.

Obama didn't write this, NOR did anyone in the WH.

The DOJ did.

The idea here folks, is called non-tampering by the WH?

You remember when we WANTED that from Bush?

Of course, we COULD have what Bush did, run the DOJ out of Karl Roves old office....

That worked out well, didn't it?

by WashStateBlue 2009-06-12 10:37AM | 0 recs
Re: Defending DOMA?

The Court didn't rule it yet.  Things might be different?  

Houston Divorce Lawyer Blog

by lilypham 2009-06-12 10:39AM | 0 recs
Re: Defending DOMA?


I don't understand why you keep arguing the Full Faith and Credit Clause argument its a moot issue. For one as another commentator has stated even without DOMA states would not be compelled to recognize same-sex marriage just on that clause alone (think states as "laboratories").

My issue is one of enumerated powers congress does not power granted to them by the US Constitution to regulate marriage which as the same commentator has posted focus on Sec 3 of DOMA which defines marriage on a federal level. Congress does not have this power.

Further more Sec 3 borders on a violation of the due process and equal protection clauses as well. While you are indeed correct that the Supreme Court in Loving v. Virginia did shed light on the issue of procreation nonetheless is establish marriage as a fundamental right "Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Also I think Roe v. Wade style backlash is unlikely as you are comparing apples to oranges. Support/Opposition for Roe v. Wade has stayed relativity steady over time whereas support for Gay Rights specifically marriage is growing. In fact while outrage may occur at first over a few years more people will come to accept that gay marriage does not threaten heterosexual marriage. Indeed I think a better comparison would be civil rights era legislation and court cases backlash. Yeah it was rough for a few years but eventually people came around to the change.

by political22 2009-06-12 10:55AM | 0 recs
Re: Defending DOMA?

You misunderstand backlash theory.  Look at the opinion trend-lines on abortion leading up to Roe v. Wade and afterwards.  You're right, opinion has been pretty steady since then.  THAT is backlash.  The trend lines showed CLEAR growing support for abortion rights, right up until Roe v. Wade when that growth in support suddenly stopped.  Backlash theory isn't that people who had come to one side will switch back to the other, it's that when the Court makes such a sweeping ruling, people who could have been convinced to change their mind will become solidified on the other side.  Gay marriage supporters are still in a minority.  I see that easily changing in the next 5-10 years.  I fear that if the Courts step in and force it, gay marriage support will stay a minority for a long time to come, just as backlash theory basically predicts that without Roe v. Wade, abortion very likely wouldn't even be an issue anymore, with 90+% of Americans being pro-choice (you can debate the merits of backlash theory all you want, but I think you misunderstood what it actually means).

Additionally, liberals tend to try to avoid enumerated powers issues, but if you really want to get into it, marriage has a clear impact on interstate commerce (the economic effects and migratory effects of gay marriage have been clear), leaving Congress with a clear power to regulate.  Additionally, Congress absolutely has the right to regulate marriage, regardless of interstate commerce questions, in terms of defining who gets various federal benefits.

As far as I can see, the only close to valid constitutional attack on DOMA is the equal protection clause, and there's frankly no Supreme Court precedent to back that up.  As you point out in your own quote, the Supreme Court expressly limited their ruling to interracial marriage in Loving.  You can disagree with that all you want, but that is what the precedent is, and changing it will require Supreme Court intervention.

The DOJ is, by law, only allowed to refuse to defend a law when it is clearly unconstitutional (I don't know where the other poster gets the idea that it's based on whether or not the issue's been decided).  There is, quite plainly, nothing that makes DOMA CLEARLY unconstitutional, thus, DOJ must defend it.  I believe DOMA is constitutional and will be upheld, and as stated above, I think that's better for the marriage equality movement anyways, but at the very least, attacking Obama for not politicizing the DOJ the way Bush (and Reagan, by the way) did is entirely unwarranted.

by bannana873 2009-06-12 11:48AM | 0 recs
I was under the impression

that the DOJ can refuse the defend a law when the constitutionality of it has not yet been determined. Say, for example, Congress passes a law, President vetoes it believing it to be unconstitutional, Congress overrides, it goes to the courts, the DOJ can then refuse to defend the law because they already said it was unconstitutional.

This could be the case Steve M cited when "the President publically condemned a law as unconstitutional"

by DTOzone 2009-06-12 12:22PM | 0 recs
Re: Defending DOMA?

You do an excellent job of completely avoiding my argument about your comparison being completely invalid. Second I was interpreting your term of backlash in the dictionary term rather than in theoretical terms. However since you do bring up the theory I think its important to note that politically speaking it relates to womens rights however extrapolating the theory to other rights issues is a fair assumption with one big exception. The theory does not apply to either abortion or gay marriage because in order to achieve that status you have to have popular support in your movement and there is a sudden backlash against it. The reason it doesn't apply to Roe v. Wade is because if backlash theory were truly applied in you're context we would see a regression in the polling rather than consistent support across generations. In addition since gay marriage does not have popular support it also would seem to fail the theory as well. I must say that I could not find a poll before the Roe decision I could only find one dated 1975 so I can't purely extrapolate what the trend lines were showing. However extrapolating support is misleading at best because it is still quite possible that abortion would hit a celling of support.

Now going back to my original argument you're comparing apples to oranges for one if what you say is true we should be seeing this exact thing coming out of Massachusetts, Connecticut, and Iowa and simply we are not in fact gay marriage seems to actually increase in popularity after this occurs perhaps because people start to actually meet more gay people and realize it doesn't threaten their marriage. Second Abortion and Gay Marriage are fairly two distinct issues. A more equitable comparison would be the civil rights era type legislation/court decision vs future gay rights legislation/court decision and of course there will be backlash (dictionary definition) but it will be temporary and fad away to the crazies in our country.

Correct liberals usually avoid enumerated powers issues because they want the government to hold broad powers which simply they don't have the authority to do so. There can be an entire debate on this subject alone on both sides of the issue. Now to the issue of the Commerce Clause. For one Congress predicated its authority to enact DOMA on its power under Full Faith and Credit not the Commerce Clause in fact congressional debate never predicated any issue of economic impact at all. Indeed I believe the UCLA has done detailed economic impact studies on states that legalize gay marriage and that it has an extremely positive impact on the states. Upon rational basis review the government would have to prove that allowing gay marriage would impact the economy negatively rather than just making the moral implication that gay marriage is wrong. Given the recent precedents in Lopez and Morrison I think this is a very strong argument for the unconstitutionality of Sec 3.

Equal Protection and Due Process are fairly compelling reasons and of course the court has ruled on issues of equal protection Loving v. Virginia and Zablocki v Redhail are precedents on the issue of marriage. Granted it isn't specific to same sex marriage it provides the groundwork to expand marriage. Not to mention several states Supreme Courts have ruled on the matter of same sex marriage not on the basis of the federal constitution but their respective state constitutions.

As for the DOJ I'm not the merits of the DOJ's job rather the Constitutionality of DOMA. I do commend Obama for not politicizing our Judicial System. However it is the purview of the Attorney General on how the DOJ will respond to law suits against the United States and the Courts job to rule on these matters hence separation of powers.

by political22 2009-06-12 01:29PM | 0 recs
Baker v. Nelson

once thing left out here is Baker v. Nelson, the Minnesota Supreme Court ruling that said same-sex marriage bans are not a violation of the 14th amendment. SCOTUS refused to hear the appeal in 1972, constituting an on the merits decision, and left the Minnesota ruling as legal precedent.

SCOTUS would need to overrule Baker in order to overturn all the states' Constitutional amendments banning gay marriage,

As of right now, banning gay marriage is technically constitutional, although I agree it shouldn't be...but Baker sets that precedent.  

by DTOzone 2009-06-12 01:40PM | 0 recs
And with this states rights supporting court

when it fits their ideology (and this would) I think we fight this in Congress and in the individual states.

SCOTUS (mostly because of Kennedy) would be very risky right now for an equal protection straight up argument IMHO.

The more states that have Equal Marriage rights, and can demonstrate that Straight Marriage doesn't some how dissolve, and that bibles don't burst into flames, and that western civilization doesn't collapse, the more public opinion will hold sway and more states will pass equal marriage rights laws.

WA State now has a complete domestic partnership law, and, of course, the RR are claiming our social structure will collapse because of it.

Give us 2-4 years, and I think WA state finishes the march.

by WashStateBlue 2009-06-12 01:51PM | 0 recs
Re: Defending DOMA?

To further clarify, "clear" unconstitutionality is generally taken to be when a law violates a settled, consistently applied precedent (which DOMA doesn't), or when it directly conflicts with the clear, not open to interpretation text of the constitution (which DOMA also doesn't).  An example of the first would be, for example, a law declaring that the Supreme Court can no longer find any law in America unconstitutional.  An example of the second would be a law allowing someone to run for President when they are 30 years old.

by bannana873 2009-06-12 11:50AM | 0 recs
Re: Defending DOMA?

The DOJ is not under any obligation, per se, to defend all existing laws.

If the DOJ though a law was unconstitutional, they are free to say so.

by Searching For Pericles 2009-06-12 11:37AM | 0 recs
If we want the party to take us seriously

we're going to have stop posting untrue things.

by DTOzone 2009-06-12 11:45AM | 0 recs
statement from Lambda, ACLU, etc

If you look at the statement that is up at Americablog, these groups are upset by NEW arguments that the DOJ is making. this it seems to me is really hard to justify:

From the statement:

"We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be "neutral" with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing "neutral" about the federal government's discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of "neutrality" ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality."

by KateG 2009-06-12 12:46PM | 0 recs
As I said before

it makes me wonder if the DOJ is purposely making this hard to justify.

(which would tick me off since it would shit on the idea of the independent DOJ)

wouldn't surprise me though

by DTOzone 2009-06-12 01:01PM | 0 recs
Barely a ripple outside of the blogosphere

Interesting how LITTLE this is on the radar of the MSM, I will be interested if any of the cable news shows pick this up.

From one of the few press coverages: 2/ts_advocate/justice_defends_doma_1

The U.S. Department of Justice Thursday night filed a motion to dismiss a legal challenge to the Defense of Marriage Act, the federal law that defines marriage as being between a man and a woman.

"As it generally does with existing statute, the Justice Department is defending the law on the books," said Justice Department spokesperson Tracy Schmaler. "As you know, the president has said he wants to see a legislative repeal of DOMA, but until Congress passes legislation repealing the law, the administration will continue to defend the statute when it's challenged."

Key phrase highlighted.

BTW, this article by the advocate seems less pissed off then most here, which is a good sign to me, that they have a realistic view of why this was done today, and what it means in the long term struggle to repeal DOMA.

by WashStateBlue 2009-06-12 01:12PM | 0 recs
Gay Rights groups

don't want this case to be heard because they think it'll go against them and further solidify DOMA as settled law.

They're pushing for a legislative repeal.

by DTOzone 2009-06-12 01:24PM | 0 recs

Reminds me off the Dover Intelligent Design Case, where the backers of ID tried to get off the train, rather then have the ruling go against them.

I would be very worried about this hitting the current SCOTUS with its make up, and getting a ruling that sets back egual rights.  I don't trust Kennedy on this at all.  

The correct place for this is Congress, but right now, we need more Democrats and Less Dinos in the Senate, to repeal Doma.

by WashStateBlue 2009-06-12 01:35PM | 0 recs
Re: Defending DOMA?

Update [2009-6-12 12:4:13 by Josh Orton]: To clarify - I understand that our adversarial justice system places a duty on the current administration to defend the constitutionality of a law signed by the previous one. Yet it's less-than-satisfying to compare a defense of DOMA to a defense of other laws. And the language and precedent used in this motion seems excessive.

So, you're saying they should have just half-assed it... not exactly ethical, in the legal world at least.  If you are charged with defending something, even if you don't believe it, you are required to do it to the best of your ability.

by LordMike 2009-06-12 02:56PM | 0 recs
D-Kos has been hammering this all day...

This diary gets it right IMHO 18642/8593

by WashStateBlue 2009-06-12 03:36PM | 0 recs
The commenters there


but it shouldn't surprise anyone, DKos is outrage central...they're the blog that cried disappointed.

by DTOzone 2009-06-13 12:22PM | 0 recs
What? You thought liberals were different?

The only thing that seperates the rabid left from the Bush administration are stances on issues...everything else remains the same. Abuse of power? sure, as long as it suits our interest.

And you wonder why so many people claimt to be "moderate" and "bipartisan?"

by DTOzone 2009-06-13 12:22PM | 0 recs
Re: Defending DOMA?

The issue is the total lack of action by the administration on DOMA and DADT.  I think it's understandable if people read this brief and momentarily lose the forest for the trees.  Yes, if it's the law and it's not patently unconstitutional, the DOJ is going to defend it, if they're doing their job and aren't totally corrupt.  

The problem is that it's the law in the first place, a situation which Obama hasn't done anything to correct, at least that I can detect.

by Jess81 2009-06-12 05:30PM | 0 recs
I still think

they're trying to get a court to overrturn this...I had always said the Democrats would try to get DOMA struck down as Unconstitutional...Unfortunately, it's not working for us since federal courts keep upholding it, and SCOTUS has refused to touch it and keep Baker v. Nelson as set precedent.  

Repealing DOMA is the best bet right now because I've given up on the idea that a court will overturn it...but it doesn't stop the GOP from putting back into the law books should they control the government again...overturning it as Unconstitutional does. We would need a Constitutional amendment, which would NEVER pass anymore.

Still, I think Congress should move to repeal it...don't think it'll happen though until polls start showing 55%-60% in favor of gay marriage.

by DTOzone 2009-06-12 06:32PM | 0 recs
the benefits of an absurd argument

If I recall correctly, soon after taking office, California's A.G. Jerry Brown was tasked with defending California's state DOMA law.

He did so, but he took a rather unusual legal tack, saying that marriage is not a fundamental right in California.  

The strange thing is that the California Supreme Court had stated (in Perez v. Sharp, the ruling invalidating California's anti-miscegenation law, before Loving v. Virginia deemed those laws unconstitutional nationwide) and had affirmed and reaffirmed that marriage is a fundamental right in California.  

The California Supreme Court was not swayed by the A.G.'s unusual argument, and declared the state's DOMA unconstitutional in "In Re: Marriage Cases" last year.  (And we all know what happened after that.)

Dare we hope that Obama's DOJ is coming up with bizarre and legally unsound arguments for DOMA, or at least bizarre and uncomfortable ways of phrasing arguments, to "heighten the contradictions" and make it easy to overturn?

by chiefscribe 2009-06-12 07:30PM | 0 recs
Obama no friend to the gay community -

Looks to me more of the old Liberal view that Gays should just shut up and take what is given them.

The sound you are hearing is the Gay and Lesbian Community realizing that Obama was a very large mistake.  He's just throwing us under the bus yet again.

The fact is that Obama has done nothing about Don't Ask Don't Tell, repealing the travel ban for folks with HIV, repealing DOMA or to support Gay Marriage.  Furthermore its becoming very clear he intends to do nothing about them in the future.  

We were better off with Bush - at least we knew he was our enemy.  We are now learning that Obama is also our enemy.  You will forgive us if we scream a bit during that process.

by mwfolsom 2009-06-13 11:00PM | 0 recs


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