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  • « They said it… | Main | The DOMA f*ck up »

    June 12, 2009

    Defending DOMA

    Posted by: Andoni


    In case you haven't heard, the Obama Justice Department has decided to defend the Defense of Marriage Act in federal court. You can read the brief in Smelt v The United States of America here (at the bottom) along with some reactions here. A statement from some of the major LGBT organizations are here.

    Reading the arguments the DOJ makes to defend DOMA really makes me angry and I wonder if this is what President Obama or the higher ups in the White House really think. It's the same arguments the Republicans and religious right have been making for years --- with even a few new ridiculous ones thrown in.

    The only thing I can conclude is that we've been thrown overboard by the Obama administration or by presenting such ridiculous arguments, this is a really clever way to throw the case.

    For instance they argue that restricting rights is a legitimate action of the federal government because it can save the federal government money. What federal court accepts the principle that you can deny rights because there's not enough money to administer them. By that reasoning we can close down polling places in poor neighborhoods or Democratic neighborhoods and say we don't have enough money to keep those places open. Lack of money should never be a reason to deny equal rights.

    Or the argument that federal tax money can't be collected from people in states that do not recognize same sex marriage going to benefit sames sex married couples in states that do. This is bullshit. A citizen or state or any other entity cannot specify or prevent federal dollars from being sent to a specific place or for a specific designation. If citizens could specify how and where their federal tax dollars could be used, a lot of people would request that their money not be spent on war or the pentagon or tobacco.

    The people in the Justice Department writing this brief made so many discredited and ridiculous arguments for DOMA, I hope these were really intended to help the court see the fallacy of DOMA to persuade the court to strike it down. Otherwise my only other conclusion is that the Obama White House has thrown us overboard.

    ADDENDUM: Harvard constitutional law exprert, Prof. Lawrence Tribe, offers the Advocate another plausible reason for the DOJ filing this lawsuit. Of all the federal lawsuits challenging DOMA, this is the worst one and has the least probability of succeeding. It has a good chance of going to the Supreme Court and losing, thus cementing DOMA consitutionally in place for a long time. The DOJ has merely asked that this lawsuit be dismissed, then made a laundry list of every single argument ever made for DOMA, hoping that one would stick and the case would be thrown out. Tribe seems to think that the GLAD case (you know that group that has been so successful in the New England states) is the best challenge to DOMA out there, but that one (timing wise) is behind this one, so this one had better not reach the Supreme Court before the GLAD case. The GLAD case was crafted to appeal to five or more justices on bases that we are fairly certain they agree with. If GLAD wins, that will slice DOMA open and some of pieces holding it together will fall apart, making DOMA much more vulnerable for the next lawsuit. The idea is to put a hole in DOMA first, then go in for the kill later. Most experts think the Smelt challenge (above) doesn't have a chance of touching DOMA at the Supreme Court level, and would only serve to cement it in place for years (think Bowers) if they lose. That's why it has to be moved out of the way by having it dismissed.

    So maybe the DOJ is doing its job (defending the United States laws) and helping the marriage equality cause both at the same time. I mean, if this case doesn't have a chance at the Supreme Court, knock it off now.

    It still hurts to read all those debunked (and even pre-Lawrence) laundry list of arguments being used against us. But I guess if you are trying to get a case thrown out, you use everything you have, hoping that one will stick.

    I would feel much better if Obama would simply let us in on what his plan and timeline are to achieve LGBT equality. Since June is Pride month, now would be a good time to tell.

    So if any reporters are reading this, the question for Press Secretary Gibbs is, "Can you share with us what is the president's plan to achieve his campaign promise of gay and lesbian equality and what is the timeline for that plan?"



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    1. DaveADav on Jun 12, 2009 8:50:46 PM:

      What a fraud! We were deceived by a fake liar in Bill Clinton who took every opportunity to throw us under the bus, now we must demand equality by President Obama. If we let him slide on this, then we surely deserve what we get by being nice and quiet and waiting for crumbs of acceptance. Time to stand up Queers and demand our place at the table!

    1. Jake on Jun 12, 2009 11:41:02 PM:

      I still don't believe that anyone is surprised. He stated, when campaigning in California, that he believed that a marriage was between a man and a woman. This was the reason that I could not, and did not vote for him. I tried to get people to see reason, that he would say almost anything to become president, and yet do nothing for us. He will do very little for us, he will give us tidbits and scraps.

      I truly believe that he will discriminate against us until we are needed again for him. This is the way of the democratic party. We are their tokens, maybe now the Gay community will see that they do not care for us until it's time to vote. Maybe it is time for us to look to a new party to help us, are we really not that strong that we couldn't support a different party and shake up the democrats? I think we're stronger than they believe. When is the Gay community going to come together as a whole, and stand united against all oppressors? How many years are we going to allow this to continue to happen?

    1. Doubting Thomas on Jun 13, 2009 10:48:07 AM:

      1. Consider the sources, both "The Advocate's" Kerry Eleveld who let Obama lie to her readers about being "a chief cosponsor of" [he was not] and having "passed" Illinois' gay rights bill [he wasn't even in the state senate anymore when it was voted on], and Tribe who is a close personal friend of and unique mentor to Obama after being his Constitutional Law prof at Harvard, appeared in primary TV commercials for him, and represented him to the press UNTIL he overspoke after the LOGO forum and revealed Obama's REAL opinion about Sect. 2 of DOMA despite O grandstanding about wanting it repealed... after which Tribe seem to disappear from the campaign. In short: O thought S-2 doesn't really matter because of the traditions of states rights and O supported states rights OVER same gender couples in ANY case.

      "Obama believes states should be under no obligation to recognize same-sex marriages from other states. He wants to fully repeal DOMA, however, because he views the statute as 'ineffectual and redundant', in the words of Tribe.

      Obama believes a long-recognized public policy exception to the Constitution's Full Faith and Credit Clause exempts a state from having to recognize a same-sex marriage from another state which runs counter to its own public policies.

      'Marriage is not something that states have ever been obliged to recognize if it's been against their own public policy', said Tribe, who has testified on the subject before Congress. 'Same-sex couples in Massachusetts are neither better nor worse off with DOMA repealed except that the repeal of DOMA is a way of telling that couple that their marriage in Massachusetts is not going to be made the subject of a symbolic and ineffectual slam by the federal government'." - abcnews.go.com/Politics/story?id=3468949&page=1

      When O frequently said during the campaign "it should be up to the states," gays eager to be brainwashed interpreted that he only meant states that acted FOR gay unions when it was clear to those not brainwashed that he meant ANY decision either way by states...a position reiterated in his statement on the Iowa Supremes decision and, I believe, this brief.

      Tribe carefully does not address THAT aspect of the lawsuit in this interview.

      2. And though he tries to distract, he admits, "[t]here certainly are cases where the government declines to defend the law."

      3. His discussion of the merits of this case is sadly disingenuous. "Bludgeon"? When was a court required to rule on all or none of the claims in a case? And, NO ONE knows better than Tribe that "merits" of a case, either against DOMA or the ban against gays in the military have had NOTHING to do with how most judges have ruled. Most have totally ignored the merits in favor of what the government/society wants. I'm less familiar with DOMA cases but it has been blatant in military ban cases for over 30 years during which time courts have repeatedly said "constitutional issues aside we agree with the military that the ban is in their best interest."

      So it's not the careful "scalpel" of any lawsuit but which majority of Supremes would rule on it. Justice Kennedy, while having wrote the pro gay "Romer" and "Lawrence" decisions, voted with the majority against gays in the Boy Scouts case which mirrors in some ways the military's justificaton of its ban, and was, in fact, when on the Court of Appeals, one of those judges who [in "Beller"]ruled in favor of the ban explicitly because it, in his opinion, it trumped plaintiffs' Constitutional rights.

      4. All that aside, HOW is the government EVER arguing Antigay Industry talking points against us GOOD? That's counterintuitive no matter how much Tribe wants to turn his beloved friend's sow's ear into a silk purse.

      Would any justice, either outright antigay or "objective," accept O's reps suddenly claiming in other cases, say a year from now, "Ooops, we didn't mean it" in regards to what they've filed this year in their defenses of DOMA and DADT?

      How can he, assuming he genuinely wants to, finally keep his campaign promises to lobby Congress for their repeal when he has publicly DEFENDED them using the very language both laws' sponsors used to justify their passage in the first place?

    1. Strict Scrutiny on Jun 13, 2009 11:47:41 AM:

      This is terribly disheartening, although it is consistent with the utter failure of the Obama white house to advocate for LGBT rights.

      Even if Larry Tribe is right, this seems to be an awfully indirect and roundabout way of getting rid of DOMA -- by defending it now in the hopes that a stronger lawsuit will come down the pipes later to put a hole in it.

      I don't believe Obama is the leader I once thought he was on our issues.

    1. Doubting Thomas on Jun 13, 2009 2:53:46 PM:

      In Vietnam, it was called the "we have to burn the village to save it" defense.

      Too many gays are still exhibiting Stockholm Syndrome. While I don't expect Immigration and Homeland Security to start tracking down gay tourists, forcing them to take HIV tests, and immediately deporting anyone who tests positive, I WOULD expect some gays to still defend the administration. After all, they'd just be following the law.

    1. Hawyer on Jun 14, 2009 3:18:08 PM:

      Having just slogged through all 54-pages of the DOJ's response to Smelt/Hammer v US --- I am frankly nonplussed at the shopworn homophobic arguments and shameless pettifogging trotted out to defend DOMA - WHICH OBAMA CAMPAIGNED ON OVERTURNING.

      1. That an administration can make policy contrary to existing Federal law is incontrovertible - and accordingly advise the DOJ to argue so. So there goes that defense.

      2. To suggest that the Obama DOJ filed there defense as a ruse in order to punctuate the absurdity of DOMA is likewise nonsense. WTF.

      3. And even if the Obama DOJ didn't want to run down the middle of the field without a helmet this time --- it could have simply dismissed the suite as without merit, as the litigants had not applied for any federal benefit or sought to have their marriage recognized outside of California - and consequently failed to prove they were damaged. (a narrow scalpel approach) End of story.

      4. I can think of no positive policy position advanced on advanced by this stunning position - other than one of anti-gay.

      My conclusion is that Obama is a shameless liar and a homophobe to boot - two attributes that I warned of on this very blog. While I'm not surprised, I take no comfort in saying "I told you so."

    1. Hawyer on Jun 14, 2009 3:27:47 PM:

      Not to put too fine a point on it - but is strikes me that W. Scott Simpson (Senior Trial Counsel for the USDOJ)- the attorney that wrote the response - could not have done this with a straight face unless he was an anti-gay ideologue - sort of a Kenneth Star with a queer complex. Jeez - what a bummer.


    1. Hawyer on Jun 14, 2009 3:28:54 PM:

      And yes I voted for Obama.

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    1. Prof. Donald Gaudard on Jun 15, 2009 1:51:56 PM:

      The Smelt case is so poorly drafted that it is going to be thrown out of court no matter what the DOJ says. Smelt and his married partner assert no federal rights that were violated, they filed it in the wrong court, and they sued the wrong people. Their lawyers are novices who know nothing about federal court procedures and rules. And they certainly know nothing about gay rights law; one is an adoption attorney and one is a real estate lawyer. So the DOJ is actually going to win on this no matter what was in their brief.

      However, the DOJ brief could simply have asserted these claims; it was overkill to bring up all the anti-gay bigotry. The brief was written by a MORMON attorney so what can you expect? Why he's still working for the Obama administration is beyond me. This filing out to be the nail in the coffin for his employment.

      Professor of Law Emeritus Donald W. Gaudard

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      To suggest that the Obama DOJ filed there defense as a ruse in order to punctuate the absurdity of DOMA is likewise nonsense. WTF.

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      Even if Larry Tribe is right, this seems to be an awfully indirect and roundabout way of getting rid of DOMA -- by defending it now in the hopes that a stronger lawsuit will come down the pipes later to put a hole in it.

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