Barack Obama | DOMA | Gay Marriage | News

DOJ Defends DOMA, Says Good for Budget, Invokes Incest

Since my earlier post, Americablog has been busy at work parsing the briefs from the Department of Justice's motion to dismiss the federal same-sex marriage case brought by Smelt and Hammer. There's plenty more to read.

Of the DOJ's rationalization, they write:

"Obama didn't just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn't motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer and Lawrence shouldn't be interpreted to give us rights in any other area (which hurts us in countless other cases and battles). He argued that DOMA doesn't discriminate against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get married and we can't).

"He actually argued that the courts shouldn't consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level.

"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." Folks, Obama's lawyers are even trying to diminish the impact of Roemer and Lawrence, our only two big Supreme Court victories. Obama is quite literally destroying our civil rights gains with this brief. He's taking us down for his own benefit."

Americablog also says that the Justice Dept. is lying to Politico in a defense of the brief.

Document, AFTER THE JUMP...

Obama's Motion to Dismiss Marriage case

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  1. To call them "incest" cases is a bit strong. States have taken different approaches on whether to recognize marriages between first cousins, for example. New York will not permit first cousins to marry but will recognize those marriages from states that perform them. Other states do not.

    Usually the term used in law is "consanguinity" to reference the degree of permitted relationship.

    There is no constitutional right to marry your first cousin, so there is no consitutional prohibition on one state not recognizing a first cousin marriage from another state.

    By analogy, if sexual orientation does not receive heightened scrutiny under the Equal Protection Clause, then same-sex marriages are more like marriages among relatives, than interracial marriages.

    Posted by: J.Lowrot | Jun 12, 2009 3:26:53 PM

  2. Given current rulings by federal courts, this absolutely is the response one would expect from the AG's office. No federal court has ever held that gays and lesbians are a suspect class. Until that time, rational scrutiny standards apply, and like it or not, DOMA would withstand rational scrutiny based on these crappy arguments.

    This is in response to the Hammer/Smelt lawsuit, which is a poorly constructed lawsuit that vindictively seeks to overturn state laws, constitutions, and DOMA.

    Obama promised to REPEAL DOMA, and I think he meant at a legislative level. While DOMA is still law, I have no doubt his AG's will continue to defend it, as they should. If DOMA goes down due to litigation, it's best that it do so with a strong defense from the AG.

    Gays and Lesbians are in this for the long haul, we better develop a thicker skin.

    Posted by: bluprntguy | Jun 12, 2009 3:27:21 PM

  3. Pretty sickening, and like many others I too wish Obama would step in and be a fierce advocate. I hope none of this rhetoric becomes part of any official judgment, because it's hideous.

    And here's one more example of why we should avoid like the plague the term "same-sex marriage" -- it allows them to make the arguments that it is something totally new and different from "traditional marriage," so why should they recognize it at the federal level? It's not really marriage. It's something new, and we can't afford to subsidize something new right now.

    The arguments in the brief are truly nausea-inducing.

    Posted by: KevinVT | Jun 12, 2009 3:35:00 PM

  4. This is a bare-faced declaration of war upon the gay community from the newly anointed leader of the North American Anti-Gay Movement -- Barack Obama.

    There can be no apology or scrutiny of alleged motives. This cannot be undone. Obama's bigotry is apparent for the entire world to see.

    Posted by: Roscoe | Jun 12, 2009 3:42:27 PM

  5. Lets not forget that the prop 8 in California passed due to Obama and his supporters. He is quite happy to run roughshod over civil rights, over the rule of law, over long term American prosperity in the narrow interests of his own political success and those of his close allies.

    Posted by: Scott | Jun 12, 2009 4:06:41 PM

  6. I know this may sound strange - but what IF - gay men and women - just Married each other for the Convienence of it....they want thier Sanctity of Marriage ruined - Lets ruin it.........Marry the opposite sex - get all the benefits - but don't live with that partner in the "Marriage sense"..just get the 1500 Federal rights Until we get them legally....fine, they don't want us to get married to each other - marry the opposite sex ie: gay man/lesbian apart.....get the bennys...come on, we're a smart people...we can figure it out to wrk for OUR benefit...and shove it in thier faces.

    Posted by: Disgusted Gay American | Jun 12, 2009 4:07:48 PM

  7. Well, as I posted in another story, Obama is a "typical" politician. He said what he had to so he could win the election. But for speaking my mind, I got called a jerkoff... Well to the person who made that comment, What do you have to say about Obama now. Call me what you want, but I, like many others, fell for his lies and voted for him. So I have the right to be upset for casting my ballot for a liar.

    Posted by: Jeremy | Jun 12, 2009 4:19:50 PM

  8. "Lets not forget that the prop 8 in California passed due to Obama and his supporters."

    That's a ridiculous lie.

    "....African-American demo"

    Roy, if being pro-gay isn't enough to make African-American voters vote against a politician, then why the fuck do you think that being anti-gay will make US vote for a politician? That's why I don't understand what the President is doing here--this will NOT benefit him with any frickin' group in this country.

    Black people vote as a block for Democrats--whether those Democrats are pro-gay civil rights or not. Don't make up lies due to emotional frustration.

    Posted by: Derrick from Philly | Jun 12, 2009 4:22:07 PM

  9. "If Obama was an all powerful king he would have repealed DOMA, DADT, and allowed for marriage equality federally; but he isn't, he has to work within the political system that is in place."

    Obama could easily order a halt on the implementation of DADT which would stop the firing of gay service members. The law would still exist but action based on the law would cease until congress could examine it and decide whether to get rid of it. He has chosen not to make such an order despite the pleas in the media from outstanding gay men and women service people who are being fired from the military.

    I don't think there is an reason to assume Obama would repeal DADT and DOMA regardless of what type of power he held.

    Posted by: mike | Jun 12, 2009 4:30:01 PM

  10. Please don't forget to drop an e-mail to the White House regarding this. The address is


    Posted by: silverkjk | Jun 12, 2009 5:03:29 PM

  11. Its about time that we gays and supporters of gay rights divorce the democractic party being that we cannot legally marry anyone in majority of states and the federal govt now says federal benefits are not a fundamental right. BS let them lose an election because of us and see how fast they are willing to change their views.

    Posted by: Ian | Jun 12, 2009 5:03:47 PM

  12. I find it interesting that this is the first issue that has soured some of the previous posters on Obama. Gay rights are just one of many issues on which he is just like GW Bush. Warmongering, taking away even more of our rights, upholding Bush plans to kill the environment, and so many more. Please realize all these issues need to be important to us all, not just issues we feel affect us more personally. We need to hold his feet to the fire on ALL progressive and social justice issues.

    Posted by: HollywoodGothic | Jun 12, 2009 6:03:30 PM

  13. I have noticed hesitance from past civil rights leaders like Rev. Jesse Jackson to acknowledge Gay Marriage as the civil rights issue of our time, the other day he gave this honor to education go figure! Perhaps the President belongs to this group who somehow sees our struggle as less significant than theirs, it is a shame, because such rich history should enable us to discern discrimination in all of its forms. One thing is clear, no one feels discrimination like the one who is being discriminated, we must stand united and fight it, whether you like the President in some issues or not, this is your fight too and you should care as much as I do.

    Posted by: Rafael | Jun 12, 2009 6:15:20 PM


    Posted by: Leona | Jun 12, 2009 6:35:12 PM

  15. Not only thrown under the bus, but backed up & run over several times by that memo.
    Thanks DOJ! Just when we started to see a glimmer of hope for equal rights...

    Posted by: Rob | Jun 12, 2009 6:47:33 PM

  16. There are plenty of reasons to be mad at Obama for this, but it would be nice if people could be less hysterical. Even Andy's headline shows he misunderstands what's in this brief. Or at least has read americablog's nonsence uncritically.

    The brief in no way relates homosexuality to incest or pedophilia. It points out that states are free to disagree with each other about qualifications for marriage, and it cites cases that involve the minimum age for marriage, which varies from state to state, and the right of states to set different standards for prohibiting relatives from marrying one another.

    It's all bad enough without mischaracterizing what's going on.

    Posted by: BillyBoy | Jun 12, 2009 7:25:31 PM

  17. I can't believe anyone here actually thought that Obama would do anything pro-gay rights.

    He is nothing but an opportunist.

    He is scum.

    I'm proud to say that I did not vote for him.

    Posted by: Eric | Jun 12, 2009 10:42:20 PM

  18. I know this may not be the 'right' site for this or whatever...I'm 19 and gay and have an okay understanding of politics, etc...anyways -- I don't normally ever 'post' on sites on anything, but something compelled me to this time. I just wanted to say I read that document (after which I had a splitting migraine btw)....and its mind-numbing, scream-in-frustration-and-sadness, political doublespeak, plain and simple. Biblical literalists will always find some way to be omnipotent, so why can't marriage be made a solely religious institution, so all those hundreds of civil rights are made available for EVERYONE. I've always known in my heart that I'm gay and that God DOES love all his creatures, no matter the text in a book. There ARE denominations out there that understand this, using biblical principles that EVOLVE with further understanding - UCC, whose recent slogan was 'God is still speaking'....that resonated with me....he may be speaking still, but there's so much commotion no one can HEAR him. Now i'm just sounding preachy...(btw I have best friends that are atheist)...sorry - the point is that I'm admitting I got caught up in the dream and the sparkle of his eloquent rheotoric and voted for an image that was well...just that - an image. I'll also admit I'm crying while writing this because this whole thing is just undescribably tragic - what's really sad is that a part of me still desperately wants to believe this is just a postponement on his part to bide him time through the bad economy...after which he'll just MAYBE think this through and change his mind.....wishful thinking....

    Posted by: Leo | Jun 13, 2009 5:04:44 AM

  19. In the entire history of the USA there have always been degrees of citizenship from full citizens (as in "all men are created equal" who were allowed to vote) and others (as in "three-fifths of a man" with partial votes or women who could not vote at all).

    Right now gay people cannot pursue a military career or enjoy the legal and financial benefits of marriage because we are the new 3/5's of a man. Ironic isn't it, that a former 3/5's is now in the highest office.

    There has always been hypocrisy in the USA regarding citizenship in spite of the idealism in our founding documents.

    How did the other former 3/5's get full citizenship? I'm just saying....

    Posted by: jessejames | Jun 13, 2009 7:01:51 AM

  20. I actually agree with Bill Maher's recent statements that Obama needs to essentially grow a set and start acting with real "audacity". He has shown absolute vanilla leadership on the economy and the same is looking to happen with so-called health care reform. With a 65% approval rating, the Republicans as powerless as they'll ever be, Obama needs to understand what GW Bush meant by having "political capital and intending to use it". My trust for him is waning daily on social issues and he seems very controlled these days by handlers and lobbyists. I never expected him to be a real "fierce" advocate for us. Look, during the campaign, Michelle, did most of the out-reach to the LGBT groups, never Obama. I think his religion and his "heterosexual" sense of entitlement enables him and Raum to put the LGBT community on the bottom of the to-do-list. So far, Obama has been the fierce advocate for AIG, CitiBank and Wall Street. The fact that we can't even have something as simple as ENDA and the repeal of DODT passed now floors me. These are no brainer pieces of legislation with high approval by the majority of Americans. On those issues, the only thing that is allowing him to not act is probably the religious lobbyists and the Blue Dog Democrats. He's letting the Republican leadership lead him around by one ear, Wall Street lead him around by the nose, and his church by the other ear.

    Posted by: Pete Acton | Jun 14, 2009 5:10:24 PM

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