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Department of Justice Files Defense of DOMA


Back in October, the Department of Justice announced that it was going to be appealing two rulings, in Gill v. Office of Personnel Management and Commonwealth of Massachusetts vs. Department of Health and Human Services, in which Judge Joseph Tauro of Boston ruled that the Defense of Marriage Act (DOMA) violates the Fifth Amendment and impedes the state of Massachusetts's ability to define marriage. 

Late yesterday, they filed briefs in support of that appeal.

While citing an "ongoing" dialogue between states on the issue of marriage, the brief offers three reasons why DOMA is still valid.

MetroWeekly's Chris Geidner:

1.    Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2.    Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3.    Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

Politico reports on the criticisms from LGBT groups yesterday:

The half-heartedness of that defense didn't offer much solace to activists who -- despite the Justice Department's traditional role defending federal laws -- are demanding that Obama return to the full support for same-sex marriage that he advocated in the 1990s.

"There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens," said Equality Matters chief Richard Socarides in an email. "And that is unacceptable."

"The Administration claims that it has a duty to defend the laws that are on the books. We simply do not agree. At the very least, the Justice Department can and should acknowledge that the law is unconstitutional," Human Rights Campaign president Joe Solmonese said in an email to the group's members, signaling that even the relatively conciliatory group will take a more confrontational tone on marriage. "All families deserve the recognition and respect of their government. It's time for President Obama to state his support for full, equal marriage. And we want your help in telling him that it's time."

Our legal expert, Ari Ezra Waldman, will have an analysis of the developments up a bit later....

I've posted the brief, AFTER THE JUMP...


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  1. Hold on a sec while I run out to my car and get my surprised look.

    Posted by: Brad | Jan 14, 2011 7:46:35 AM

  2. People will complain about this, but the DOJ has to defend the law as it is on the books. Get congress to change it. We wouldn't want a Republican admin to refuse to enforce the repeal of DADT or hate crimes legislation b/c the Admin doesn't agree with it. This is how the government works, people.

    Posted by: IndyTown | Jan 14, 2011 7:54:39 AM

  3. Name one lawsuit which the Obama administration has declined to defend based on its belief that the law was unconstitutional.


    The behavior is consistent and completely in line with the responsibilities of the Executive branch.

    So just find one lawsuit for any other issue where this Administration failed to respond.

    Posted by: Rob G. | Jan 14, 2011 8:31:34 AM

  4. It's called "the law" and it sucks but that is what it is, it's up to us to apply the pressure to get that law changed and it will if we do our part. You already hear President Obama's position shifting and Vice-President Biden is on record as saying that it is inevitable that gays get the right to marry. We have been doing the right thing. Keep it up kids!

    Posted by: Dave | Jan 14, 2011 8:50:42 AM

  5. Oh and the DOJ is not a political office. The President may be able to appoint the Attorney General but that is it. Holder is on his own and is bound by the law.

    Posted by: Dave | Jan 14, 2011 8:53:00 AM

  6. The U.S. Department of Justice has dropped its appeal of a ruling by the U.S. District Court for the Northern District of California awarding legal fees to the American Small Business League (ASBL).

    This week, the U.S. Department of Justice (DOJ) dropped its appeal of a court injunction prohibiting enforcement of the "anti prostitution pledge" under U.S. Global AIDS Policy

    United States Department of Justice decided to drop its appeal of a decision by the Veterans' Court of Appeals, upholding a ruling favorable to homeschoolers.

    The Justice Department has decided not to proceed with its appeal of a federal judge's ruling that 1st Lt. Ehren Watada cannot face a second court-martial resulting from his high-profile 2006 refusal to deploy to Iraq with a Fort Lewis brigade

    Posted by: Jeff | Jan 14, 2011 8:53:02 AM

  7. what a bunch of disgusting cowards.We're never going to get anywhere with a bunch of propaganda spewing apologists like the bunch of you. You're either morons or too shell shocked to face the truth. Either way the state of our community is disgraceful.

    Posted by: gaylib | Jan 14, 2011 9:22:44 AM

  8. “We are told that ‘traditionally’ the department defends statutes, regardless of how vehemently the administration disagrees with the law. That is a lie. We pointed to four different court cases in which the Reagan, HW Bush, Clinton, and W Bush administrations went to court and refused to defend a law that they believed unconstitutional. So, traditionally, the President only defends heinous cases when he wants to.

    As we have shown, over and over again, the Obama administration is more than happy to look the other way on laws that don't agree with their ‘policy preferences’. I'm not saying that they go to court and argue against the laws, I'm saying that they simply ignore them. The gay community and our allies are simply asking the Obama administration to help us strike down DOMA in court - we've never asked them to simply ignore the law. But that is exactly what they do when other communities, other administration policy preferences, are in play.

    (A) the Obama administration outright ignored federal law regarding marijuana because it was at odd's with the administration's policy preferences with regards to medical marijuana.

    (B) Then there is President Obama's use of signing statements to simply ignore laws passed by Congress.

    (C) From the “New York Times”—“Obama Takes New Route To Ignoring Parts of Laws”: “[T]he approach will make it harder to keep track of which statutes the White House believes it can disregard....[T]he administration will consider itself free to disregard new laws it considers unconstitutional.... Mr. Obama nevertheless challenged dozens of provisions early in his administration. [He claimed] that he could disobey a new law requiring officials to push the World Bank and the International Monetary Fund to adopt certain policies angered Congress.... The Obama administration disregarded a statute that forbid State Department officials to attend United Nations meetings led by nations deemed state sponsors of terrorism. Congress has included that restriction in several bills.”

    (D) Then there was the time that the Obama administration refused to enforce immigration laws because they didn't comport with the administration's policy preferences.” – AMERICAblog.

    Further, civil liberties attorney Emma Ruby-Sachs has written:

    "The President of the United States has an 'undisputed right to... refuse to defend in court, statutes which he regards as unconstitutional'. Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 ¶ 41 (3d Cir. 1986). This right is often exercised by directing the Department of Justice to CHALLENGE, rather than defend, an impugned statute.

    The Justice Department has, historically, refused to defend statutes that are unconstitutional because they violate the rights of citizens and statutes that are unconstitutional because they violate the separation of powers. In 1946, the Justice Department argued against the constitutionality of a statute that directed the President to withhold compensation from three named employees. United States v. Lovett, 328 U.S. 303 (1946). In 1983, the Justice Department argued against the constitutionality of a legislative veto on citizenship applications. INS v. Chadha, 462 U.S. 919 (1983). In 1988, the Department of Justice challenged the constitutionality of the independent counsel statute. Morrison v. Olson, 487 U.S. 654 (1988).

    The Department of Justice may also notify Congress of a refusal to defend an impugned statute without appearing in court for either side. As recently as 2005, the Department of Justice notified Congress that it would not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. ACLU et al., v. Norman Y. Mineta (civil action no. 04-0262)." END QUOTE.

    Posted by: | Jan 14, 2011 9:55:48 AM

  9. The Administration is absolutely NOT required to defend statutes. Every President including Obama has declined to defend acts of Congress. Claiming to the contrary shows an ignorance of law and history.

    That said, these are limp dick arguments. States have never been required to recognize marriages from other states. DOMA did not change that. What it did was enshrine discrimination into federal law where it had not been before.

    Posted by: justiceontherocks | Jan 14, 2011 10:14:47 AM

  10. What a bunch of pansies and stupid people we have here defending Obama's DOJ denying our rights. I am sure a good number of those people are from Obama's administration trying to the defend the un- defendable.

    AS Socarides writes: 'the bottom line is the government continues to oppose full equality for its gay citizens'

    If you're not freaking angry about this, then you are not gay or a friend of equality. Maybe you simply like your 2nd class citzenship.

    Equality comes those those who fight for their rights.

    Posted by: FunMe | Jan 14, 2011 12:12:43 PM

  11. There are so many people in the LGBT community that refuse to see Obama for what he is. He's a passive-aggressive homophobe. He barely lifted a finger on DADT repeal. The repeal is not even a repeal, it's a cave-in-to-the-right compromise that says we'll end DADT someday when the president and the military agree to do so. There is no timeline, no plan, no requirement to do so. The president has refused to issue a stop-loss order to end DADT discharges. People, DADT is still the law of the land! The DOJ is still fighting to uphold DADT in court!
    As for DOMA several people have pointed out above there are many examples where the DOJ does not have to defend or appeal decisions at the discretion of the Obama administration. Obama used to be for same-sex marriage before he was against it and now he "struggles' with it. He is playing with our lives in the name of political expediency and his own homophobia. He is not a friend to LGBT people. Quit blindly supporting him and making excuses. He does not himself see LGBT people as full citizens and it shows in his actions over and over again.

    Posted by: Brad | Jan 14, 2011 12:48:38 PM

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