Barack Obama | DOMA | Gay Marriage | News | Supreme Court

President Obama To Supreme Court: 'DOMA Is Unconstitutional'

President Obama's administration filed an historic legal brief late Friday that declares his belief to the US Supreme Court that DOMA is unconstitutional. The dossier was written by Solicitor General Donald Verrilli.

According to NBC News:

6a00d8341c730253ef017c36ff5763970b-200wiThe Obama administration urged the Supreme Court on Friday to throw out a section of a 1996 federal law that prohibits recognition of same-sex marriage. 

The brief was filed Friday in United States v. Windsor, a case challenging Section 3 of the Defense of Marriage Act, or DOMA, the law that legally declares marriage to be only between a man and a woman. That section allows state and federal authorities to deny benefits to same-sex couples that are commonplace for heterosexual couples, like insurance for government workers and Social Security survivors' benefits.

This marks the first time a president has endorsed same-sex marriage rights in the nation's highest court. 

The brief reads in part: "Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people."

Read the entire document here

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  1. Joe ;
    American law is sure different to other common law countries....tenancies by entireties ?
    Joint tenancy or tenancy in common we have; but not "tenancies by the entireties".

    @ CANDIDENNIC : I can understand your Joint Tenancy which always has a jus accrescendi, a right of survivorship whereas a Tenancy in Common does not. that's the distinction.

    But I don't know anything about state laws which might affect your situation.
    @ JOE : state law can still deprive couples of benefits ? How ?
    Same sex couples can avail of the common law as straights do, they can have the Joint Tenancy which is unaffected by ANY marital status.
    I don't see the need for "tenancy by the entireties" whatever that is.

    Posted by: JackFknTwist | Feb 23, 2013 11:54:59 AM

  2. This man knows how history works. Well done, Mr. President.

    Posted by: Little Kiwi | Feb 23, 2013 12:19:23 PM

  3. @Mikeboston Oh you are so close. But no, while it does register as an allophone of the fricative phoneme /h/, aspiration is technically a suprasegmental off-glide of plosives. That is not the process in question. What we have here is a cross-lexical interaction called sandhi that is affected by - of all things - word length and syllabic stress.

    "An historical X" and even "an hysterical Y" both are produced in natural speech because the strong features of the sounds surrounding the /h/ sound - the preceding /n/ and the following vowel of any type - are taking over the already wispy nature of the unvoiced glottal fricative /h/ - which is now even weaker because the stress has shifted off its syllable. When a sound is made with the vocal folds vibrating, it is voiced - without, unvoiced. Natural nasals and vowels are always voiced in English. As air is escaping and the vocal folds are vibrating, the tongue is forward in the mouth to produce the /n/ sound. To transition to an /h/ sound, the vocal folds must stop and the tongue must lower. But without a stress, and the next sound being a voiced vowel, the vocal folds will just continue to vibrate and the /h/ will mutate into something more like a vowel. That is the sandhi. A phonosyntactic consonantal voicing one.

    By contrast, "history" and "hysteria" take the determiner "a" because their first syllable stress renders above morphosyntactic alteration moot. And clearly "an hiss" is ungrammatical in every way. So the longer the word is, the farther the stress is from the initial /h/ sound, and the quality of the surrounding phonetic sounds is all at play here.

    Posted by: Bollux | Feb 23, 2013 12:33:33 PM

  4. I'm really glad to see this. I'm glad he's still supporting us post election. At the risk of being cynical, I thought that there was a chance gay rights would have lost focus once he secured reelection. This makes me believe that he does truly care for equality for all Americans.

    The GOP would never. Let's be real about that.

    Posted by: JT | Feb 23, 2013 1:01:34 PM

  5. I think the pesky elements of DOMA that remain after the Supreme Court abolishes the most egregious section can easily be overcome by seeing a decent lawyer. So go to Massachusetts to get married and return to Dixie and, viola, you're still married. A lawyer can arrange for all estate matters and property matters. The Obama administration has already handled, for all intents and purposes, hospital visitation rights nationwide - but that same lawyer can handle health care decision making issues with that same estate plan that deals with inheritance, etc.

    No lawyer can grant social security survivor benefits, for example. So the DOMA case will deal with the hard parts. The IRS will treat you as a married couple even if you live in North Carolina but got married in New York. You might still be unmarried for state income tax purposes, but that's the only vestige that will remain. I predict the rest of DOMA will fall before too long as well.

    This amicus filing by the president is wonderful, but I still hold out hope Obama will file an amicus brief for the Prop 8 case as well. The implications of Prop 8 are so very important.

    Oh, and - as far as I'm concerned - it's AN historical. Heheh.

    Posted by: Zlick | Feb 23, 2013 1:03:19 PM

  6. The brief is a gripping read. I'm very proud of my president.

    I've not heard a single good argument defending the denial of federal rights and benefits to a subset of legally married couples. If the conservatives on the bench have any integrity, they will all deliver an opinion that Section 3 of DOMA is unconstitutional. I doubt there will be a unanimous opinion, because the conservatives will want their opinion(s) to be as restricted as possible.

    BTW, Bollux is more or less correct about a or an before h. From Wikipedia: "Some speakers and writers use an before a word beginning with the sound /h/ in an unstressed syllable: an historical novel, an hotel. However this usage is now rare."

    Posted by: Kyle | Feb 23, 2013 1:26:27 PM

  7. As for Scalia, I think he's the one who already wrote in his dissent in the Lawrence v. Texas case that if those laws fell, then there would be nothing preventing same-sex marriage. So here's his chance to become a prophet.

    Posted by: Rexford | Feb 23, 2013 1:36:45 PM

  8. @Rexford: As for Scalia, this is his chance of becoming the biggest "activist judge" in US history.

    Posted by: TheSeer | Feb 23, 2013 2:40:34 PM


    I'd recommend not commenting on something stating that it doesn't exist when you so clearly advise us that you don't know what it is. :-)

    Tenants by the Entirety provides joint ownership with the added benefit of protection from creditors. Not a bad deal if you live in a state which has it and you can get married. I clearly see the need for that even if you don't.

    The following states do support tenancy by the entirety
    District of Columbia
    New Jersey
    Rhode Island

    The following support it only for real estate
    New York
    North Carolina

    Posted by: Mark | Feb 23, 2013 2:49:07 PM

  10. I suspect Mikeboston may know French, where the aspirated h makes all the difference when preceded by an article. I knew exactly what he meant, and he's right.

    Bollux: are you from outside the US? Or somewhere where British English is standard? Because in American English style "an historic" is wrong. I'd even view it as a hyper correct form just a tad more pretentious and perhaps a tad more forgivable than "for you and I."

    Posted by: KevinVT | Feb 23, 2013 4:13:53 PM

  11. Q. Is it an historical novel or a historical novel?

    A. In Chicago style, it’s a historical novel. Please see CMOS 5.73: “With the indefinite article, the choice of a or an depends on the sound of the word it precedes. A comes before words with a consonant sound, including /y/, /h/, and /w/, no matter how the word is spelled {a eulogy} {a historic occasion} {a Ouachita tribe member}. An comes before words with a vowel sound {an LSAT exam room} {an X-Files episode} {an hour ago}.”

    Posted by: KevinVT | Feb 23, 2013 4:17:05 PM

  12. The heighten scrutiny has meaning far beyond marriage equality.

    I am not sure why this is missed by so many. It means that other gay rights issues, such as housing and employment discrimination, also have greater chance of being addressed.

    Posted by: nonapologies | Feb 23, 2013 4:38:59 PM

  13. Mark is right that this will have a significant impact on the financial rights, including in debt and bankruptcy issues. Until now, creditors could go after the property of same sex spouses even with state rights because DOMA prevented recognition of the state rights. This is true due to the way the bankruptcy code and many other laws are crafted. They are often a mix of state and federal law rather than giving strict jurisdiction to one or the other.

    Posted by: nonapologies | Feb 23, 2013 4:44:41 PM

  14. This is huge - thank you President Obama

    Posted by: Reality | Feb 23, 2013 5:25:08 PM

  15. @KEVINVT: yes, except that in French it changes only the way you pronounce it, not the way you write it! ps: congratulations for your President!

    Posted by: Kylian | Feb 23, 2013 5:28:24 PM

  16. Where is Bill Clinton on this court case? He needs to speak out vehemently against DOMA since he is the man who signed it into law.

    Posted by: David | Feb 23, 2013 9:20:35 PM

  17. Just a word of warning: unlike Judge Walker, who said that banning same-sex marriage would fail a rational basis test, the DOJ brief relies on the belief that DOMA must survive enhanced scrutiny. They explicitly say that if the Court chooses rational basis as the standard for its review, DOJ would find the statute constitutional.

    It's all or nothing, guys.

    Posted by: Rich | Feb 24, 2013 1:44:00 AM

  18. Has Bill Clinton, who signed DOMA into law, stated whether or not he thinks it is unconstitutional?

    Posted by: andrew | Feb 24, 2013 7:52:41 PM

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