Gibbs Stands By Administration's Legal Defense Of DOMA

WASHINGTON -- The Obama administration on Tuesday stood by its decision to defend the Defense of Marriage Act in the courts even as gay-rights groups insist the president does not have to uphold the law that he personally called "abhorrent."

"We can't declare the law unconstitutional," White House Press Secretary Robert Gibbs said during his daily press briefing. "Obviously I think, if you look at what was written, I think the president enumerates in there, the administration enumerates in there, our belief on this law as we balance the obligations that we have to represent the federal government. The president believes that this is a law that should not exist and should be repealed. But we, at the same time, have to represent the viewpoint of the defendant."

Gibbs' take has been, and seems likely to remain, the administration's default position unless Congress acts to roll back DOMA. Last week, Department of Justice spokeswoman Tracy Shmaler told The Huffington Post the when DOJ filed its most recent brief it was merely fulfilling its legal obligations, "defending the statute, as it traditionally does when acts of Congress are challenged."

The chances of a legislative remedy, however, are dimming. A Republican takeover in the House of Representatives virtually guarantees that the law will stay in place throughout the next two years. Gibbs said Tuesday that "given the current makeup of the Congress ... it is inordinately challenging."

Given that roadblock, gay-rights activists are urging the president to merely deem the bill unconstitutional and therefore indefensible in the court of law. There is an honest legal debate as to whether the executive branch can do this. That said, tradition tends to confirm its current position, that DOJ should defend the laws on the books.

Comments

[the crustybastard]

06:44 PM on 02/04/2011

Suppose the law said that neither the federal government nor the several states has any obligation to respect: the marriage of any atheist; or the marriage of any immigrant; or the marriage of any person over the age of 50; or the marriage of any person convicted of a felony, etc.

Would anybody here shrug and say, "Oh well, Obama's gotta enforce the law as it's written." I doubt'er — everybody would be yelling "Unconstitutional!" in unison.

To defend DOMA, President Obama MUST agree that it's not only a rational purpose of government to reward or punish a person based on his or her lawful private adult consensual bedroom behavior, but that purpose is so compelling that it justifies denying gay Americans their fundamental rights and Constitutional guarantees.

It's as unfathomable as it is unforgivable, and it still manages to astonish me every time I think about it.

[Robert Galyean]

11:20 PM on 01/20/2011

Even Bob Barr, the author and sponsor of the Defense of Marriage Act does not support the act. Why are we still defending it?

"Barr took a lead in legislative debate concerning same-sex marriage. He authored and sponsored the Defense of Marriage Act, a law enacted in 1996 which states that only marriages that are between a man and a woman can be federally recognized, and individual states may choose not to recognize a same-sex marriage performed in another state. At the 2008 Libertarian National Convention, he apologized for the part of the Defense of Marriage Act which prevents the federal government from recognizing same-sex marriages.
He now opposes the Federal Marriage Amendment, contending it is a violation of states' rights, and supports the Respect for Marriage Act, which would repeal the Defense of Marriage Act."

[Ron Battista II]

04:34 PM on 01/19/2011

I can't believe how many people here want to be like Allen Ginsberg and sound like Ayn Rand. This is unbelievable.

[Ron Battista II]

04:25 PM on 01/19/2011

This thread has some gutsy people on it. I like it, because there are gutless wonders all over it.

[PadriVeum]

03:04 PM on 01/19/2011

typical-just doing their duty, and hoping we forget and cast a dem vote in 2012.

[Anonymous Lunatic]

04:14 AM on 01/20/2011

After what I've seen, to hell with the Democrats; I'm voting Socialist.

[Ron Battista II]

08:51 AM on 01/20/2011

I'm a socialist, and I am staying in the Democratic party. Work from within the establishment, push your principals locally, and then start pressuring everyone around you. Just hold on a little longer. There is a lot of time left until 2012 to shape your local parties to make sure that your voice is heard. Just volunteer and tell them how you feel because that's the way it works. It only starts with a vote. After that...well, as the president has said, we are the ones we have been looking for.

[syllepsis]

01:28 PM on 01/19/2011

If the job of the DOJ is simply to blindly defend the laws on the books, why put the Dept within the Executive Branch at all? The reason it is in the Executive branch is because it purportedly reflects the priorities and philosophy of the Executive, who appoints the AG, nominates federal judges, etc.

The Supreme Court is the ultimate body of Constitutional resort, and the Executive is limited in his or her ability to affect the composition of this body, and the voting public are virtually powerless here.

Obama's DOJ has made some clear decisions: It has decided to ignore crimes committed by the previous Administration;
It has decided to ignore cases of fraud that have undermined confidence in the financial system,and in the Govt's own credibility;
It has decided to go beyond the previous Admin's excesses in asserting the State Secrets priviledge to cloak its own activities, and those of previous Admins;
It has asserted a power with no precedent or justification in the nation's history, or that of the traditions associated with it, namely, the power of extrajudicial as.s..assination.

It has mounted full-bore defenses of DADT and now DOMA.

This is not the agenda I voted for.

[Ron Battista II]

02:33 PM on 01/19/2011

No, that is correct. The president already has your agenda; he is just waiting for the right place to put it. You have to be patient, we are dealing with injustice on a monumental scale here. This is everyone's fight, not just yours.

[2Dank2Hit]

03:27 PM on 01/19/2011

Pfft, as if gay people are selfish for not wanting to be treated like an ATM or something. You disgust me.

[Ron Battista II]

01:14 PM on 01/19/2011

Here is the central problem that most of you have with this Administration; you are used to a president doing whatever he wants. You now have a president who wants to know what you want. You don't know what you want. So you jump him for not reading your mind. That's about as plain as I can make it right now.

[syllepsis]

01:52 PM on 01/19/2011

No, I don't want him to do whatever he wants. I don't want him abusing the power he has, by turning a blind eye on crimes committed in plain day, and then turning around and saying only SCOTUS has the power to do anything for the country.

[GabeSmall]

02:05 PM on 01/19/2011

So you disagree with the strategy. That's you're whole beef. You favor a legislative victory over a judicial one, and you're annoyed that Obama favors the latter, even though it has a better chance of working at this point.

[Ron Battista II]

02:30 PM on 01/19/2011

He isn't abusing the power, he is merely ceding it to the only institution in the government left who can make it STICK. In case you haven't noticed, Supreme court decisions aren't always popular. That is a good thing, because they are the judges. If you let the Court handle this, everyone flies into a true frenzy because this time, no one is allowed to question it.

[Awake-and-Sing]

12:16 PM on 01/19/2011

Even if one believes the Department of Justice is required to defend DOMA in court (which I don't), there is no requiremen­t that it use the disgusting and incendiary arguments of anti-gay bigots or defend every aspect of the law, as it did in their vile 2009 legal brief comparing us to incest, pedophilia and bestiality.

There is also nothing unprofessional about the DOJ attorneys stipulating that they believe the plaintiffs are constitutionally entitled to the same federal benefits as straight couples. This is not a criminal trial. Lawyers stipulate things all the time. There is no requiremen­t that the DOJ put on a vigorous defense of DOMA just simply because anti-gay bigots want one.

The Attorney General and his deputies would not be disbarred for a weak defense of DOMA. Their job is to uphold the Constituti­on and if the President and his Attorney General do not believe that parts of the DOMA law are Constituti­onal they should say so to the Supreme Court.

The Department of Justice is not now nor has it every been an independen­t agency. It is part of the Executive Branch of government­, and therefore accountabl­e to the President and Attorney General.

The President included in his election platform a "complete repeal of DOMA". Everyone knew that prior to the election. Even if one believes the DOJ is required to defend DOMA, the DOJ led by the President's Attorney General has an electoral mandate to defend DOMA as weakly as it wishes.

[GabeSmall]

12:27 PM on 01/19/2011

There is NO way to get a refutation and rejection of an argument into case law unless the argument is first asserted.

By mounting a total defense of this indefensible law, DOJ is leaving a massive paper trail of consequential decisions and opinions in its wake. This is how you get a case heard in SCOTUS.

[2Dank2Hit]

03:33 PM on 01/19/2011

Hook, line, stinker.

SCOTUS is not the only court in the land, but according to you and people like you the district and appellate courts just don't exist, they just don't have any power. SCOTUS is irrelevant; the unjust laws which you (yes you) and Obama and his cohort of giddy followers are defending have been undone already, they have been revived by the aforementioned group that has no problem being on the wrong side of history.

[HorsesHeadsInPeoplesBeds]

12:32 PM on 01/23/2011

Spot on, GabeSmall.

Further, an appeal by the DOJ of a lower court decision followed by a submission which concedes the unconstitutionality of the provisions that it was appealing to protect screams ethical violation.

Any of the arguments, if not made, would be waived if the case got to the Supreme Court as well. Individual arguments for DOMA's constitutionality are often the same for state Constitution amendments. If the Supreme Court has the opportunity to rule on the strength of those arguments, it may create a precedential ripple effect undermining state mini-DOMAs as well.

This is all separate from the bad, bad bad precedent it would set for the executive to simply refuse, in essence, to enforce legislation from previous administrations. At this point, if it's still the law, it's still the law, and there's a duty attached to that for the Executive.

[MichaelAllenKelly]

11:30 AM on 01/19/2011

How horrible to live in a country where I can be denied the right to marry the person I chose. How wonderful to live in a country where the very same political and legal process that denied me that right can be used to restore or grant me that right. I agree that we should allow the political and legal system time to work to repeal DOMA. I don't want a President who with a stroke of his pen claims power he does not have. It was wrong when Bush did it. It would be wrong for Obama to do it. DOMA is clearly unconstitutional in that it claims a right given to the States and I'm certain that SCOTUS will eventually find it so.

[Ron Battista II]

01:05 PM on 01/19/2011

YES! Someone who actually does their civil rights homework.

[syllepsis]

01:45 PM on 01/19/2011

False.

Why was the Civil rights Act passed? Because of SCOTUS?

NO.

JFK made his positions clear.

http://www.presidency.ucsb.edu/ws/index.php?pid=9271&st=&st1=

Compare with Gibbs' weasel words.

[syllepsis]

01:32 PM on 01/19/2011

If Obama thinks DOMA is unconstitutional, he is free to say so. But I have heard nothing but evasions on this and related questions.

[cirrus7]

11:17 AM on 01/19/2011

The DOJ has had to defend other sickening laws passed by Congress. The blatantly unconstitutional law penalizing only 1 organization - ACORN, for one.

I don't understand why the DOJ appeals unfavorable decisions if what they are doing is just a formality.

[GabeSmall]

11:28 AM on 01/19/2011

It depends on what the end game is. In the case of DOMA, and same-sex marriage rights in general, there will be question marks over every decision until SCOTUS weighs in. The only way to get a hearing with SCOTUS is through the appeals process, and they'll only hear cases that have already been thoroughly argued in the lower courts yet leave a constitutional question unresolved.

DOJ can only argue FOR laws, not against, so if an administration wants a law tested in SCOTUS, their only way they can get it there is to mount a defense to a challenge to the law, and continue to appeal it until it reaches SCOTUS.

[Awake-and-Sing]

12:31 PM on 01/19/2011

And at the SCOTUS, the DOJ has an electoral mandate to provide a weak defense and stipulate that gay couples are constitutionally entitled to the same federal benefits as straight couples.

[TheBaffler]

10:54 AM on 01/19/2011

I'm surprised that the Fierce Advocate didn't veto the repeal of DADT. You know he really wanted to.

[GabeSmall]

11:00 AM on 01/19/2011

Non.sense.

[Ron Battista II]

01:07 PM on 01/19/2011

He probably should have repealed you.

[jonester]

07:53 AM on 01/19/2011

So your obligations as a government is to blandly discriminate?

[Ron Battista II]

01:10 PM on 01/19/2011

How do I put this...it's that the government itself is bland, it is English and is boring. It needs a giant hop in the tush, but since most of us are boring, we like it to be "stable". Trust me on this, it ain't the government that discriminates...here, it is a voter who gets to do that. And America is full of yahoos who discriminate.

[2Dank2Hit]

03:36 PM on 01/19/2011

Your defense is confusing and lacking substance.

[chrisfrenzy]

06:09 AM on 01/19/2011

Obviously DOMA should be repealed. My guess is it will happen in his second term. With all the wackiness going on in the right wing, it's a sound strategy.

[FearlessFreep]

10:06 AM on 01/19/2011

You're assuming Obama will get a second term.

[Ron Battista II]

01:10 PM on 01/19/2011

You should assume that too.

[chrisfrenzy]

01:40 PM on 01/19/2011

He stands a better chance if he let's the DOMA thing run its course rather than forcing the issue from the White House. While I'm certain gay marriage will be legal in the US within a decade, it's still enough of a hot button issue for undecideds that it could spell doom in 2012.

Meanwhile, awesome screen name. "Fearless Freep! That's ma' boy!"

[GabeSmall]

11:02 AM on 01/19/2011

I'm more confident in its chances of being overturned than repealed.

[chrisfrenzy]

01:36 PM on 01/19/2011

Whatever. The point is DOMA ain't long for this world. And Obama is taking it out of play in the next election.

[Ron Battista II]

04:24 PM on 01/19/2011

I'm pretty sure you're right on this, Gabe. The Court can't avoid this forever, and it is unlikely that they won't be able to if the gay lobby finds the right lawyer to make them hear it.

[massimo1]

06:01 AM on 01/19/2011

What's the fishy smell? Little things like constitutionality didn't stop Bush. Look what he accomplished.

[SPQR1052]

05:21 AM on 01/19/2011

DOMA is unconstitutional  point.  No discriminatory laws should ever be enacted by the modern US Congress, ever. That being said my gay peers stop whining.  DADT is gone you whined and jeopardize  the US HOUSE  sorry but I cannot nor will join you in this effort because it will lead to  loosing the US SENATE and perhaps White House.  We GLBT have had no greater friend in the Oval office bar none  than this president. 

Work for a majority and demand it in 2012. Demanding it now is wrong on so many levels. I do not believe that many join in this battle because it is in fact poor timing.

WE WILL NOT  BET THE HOUSE ON THIS REPEAL NOW.

[tony wise]

05:44 AM on 01/19/2011

dadt is not gone and will not be gohne until gays can activly serve without prejiduce. that is not yet the case,

please stay informed:

http://www.ftleavenworthlamp.com/news/around_the_force/x104370352/Pentagon-preps-for-DADT-repeal-transition-process

Mullen said the legislation specifies that the repeal will take effect only after he, Gates and Obama certify that new policies and implementing regulations are consistent with standards of military readiness, effectiveness, unit cohesion and retention.
“From my perspective,” the chairman said, “now is not the time to ‘come out,’ if you will,” noting that even after the required certification takes place, the present law will remain in effect for 60 more days. “We’ll get through this. We’ll do it deliberately. We certainly are focused on this, and we won’t dawdle.”


claiming he ended DADT is like him claiming he ended the iraq war or pulled the last combat troops out. tell that to the 116th Calvary brigade COMBAT team  deployed a month or so ago to do exactly the same thing they did the first time.

a.counter-terrorism.
b.defending iraqs borders.
and c: training iraqis cause 8 years just wasnt enoughj. and noone expects 9 to be either. trhat didnt stop obama from sending in 7000 mercs and drones to replace the military. and the combat troops still there call it a slap in the face.

just like its a slap in the face for ovbama to fight that repeal the whole way. and now hes postponing peoples civil liberties...for what?

[tony wise]

05:50 AM on 01/19/2011

Barack Obama and Gay Marriage/ Civil Unions:Although Barack Obama has said that he supports civil unions, he is against gay marriage

barrack obama, committed christian, being guided by his faith methinks.