Obama, Don't Defend DOMA

Two weeks ago, the Gay and Lesbian Advocates and Defenders (GLAD - the group that brought you gay marriage in Massachusetts) served Obama's administration with a lawsuit that challenges Section 3 of the Defense of Marriage Act.

Their argument is simple: DOMA treats legally married same-sex couples differently from legally married heterosexual couples and in doing so, denies them access to federal tax deductions, social security benefits and other tangible economic gains.

Obama has the option, as has every president before him, to refuse to defend clearly unconstitutional laws. He has the opportunity today, to stand up for equal rights by refusing to argue DOMA's constitutionality in court.

This would not only be the first concrete action supporting LGBT rights for President Obama, it would be entirely in line with his statements supporting the repeal of DOMA.

The AP reports that Equal Rep - a grassroots Massachusetts organization - is urging people to send President Obama a flip flop postcard. The cards ask Obama to not flip flop on DOMA and refuse to defend the statute in court.

Below is a legal memo I wrote with the founder of Equal Rep, Paul Sousa. It explains the right to not defend unconstitutional laws and supports the proposition that Section 3 of DOMA is clearly unconstitutional.

Read it.

Write to your Senator and Congressional Representative and demand that the Department of Justice refuse to argue for the continued discrimination against same-sex married couples.

Legal Memo Regarding the President's Duty to Refuse to Defend DOMA

The President of the United States has an "undisputed right to... refuse to defend in court, statutes which he regards as unconstitutional."(1) 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 Right to Refuse to Defend an Unconstitutional Statute

The Justice Department has, historically, refused to defend statutes that are unconstitutional because they violate the rights of citizens(2) and statutes that are unconstitutional because they violate the separation of powers.(3) 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).

Although the current administration has no express policy regarding the defense of enacted statutes, now Attorney General Holder stated publicly that "the duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to." Senate Confirmation Hearing of Eric Holder before the Senate, 111th Cong. (January 15, 2009) (statement of Eric Holder).

Section 3 of the Defense of Marriage Act is Clearly Unconstitutional

Section 3 of the Defense of Marriage Act (DOMA) DOMA, 1 U.S.C. § 7 states, ""In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Because of this interpretation guideline, same-sex couples legally married in their state are denied economic benefits granted to heterosexual couples legally married in the same state. These include spousal health insurance for state employees, federal income tax deductions for those "married filing jointly," and the one-time lump-sum death benefit granted to a spouse under the Social Security program claim. Gill et al. v. OPM et al. v. U.S., No. 12-345 ¶ 6-8 (D. Mass. filed Mar. 3, 2009).

The denial of these benefits to legally married couples has no rational basis. The denial of marriage-based benefits to same-sex couples has been found to violate constitutional equal protection guarantees by a number of State Supreme Courts. Kerrigan and Mock v. Connecticut Department of Public Health, 957 A.2d 407 (Conn.,2008.), In re Marriage Cases 43 Cal.4th 757 (2008), Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), Varnum v. Brien, WL 874044 (Iowa 2009).

The challenge to DOMA 1 U.S.C. § 7 does not argue that same-sex marriage is guaranteed by the United States Constitution. It does not, in fact, address the question of same-sex marriage at all. Instead, DOMA 1 U.S.C. § 7 denies benefits to same-sex couples already legally married in their home state where the equality question has already been argued in front of the courts and settled.

Conclusion
The President reserves the right to refuse to defend an unconstitutional statute. Section 3 of the DOMA is clearly unconstitutional in that it denies married same-sex couples economic benefits granted to heterosexual married couples from the same state without providing a rational basis for this discrimination.

We ask that President Obama and Attorney General Holder refuse to defend DOMA in the upcoming challenge filed in the State of Massachusetts, Gill et al. v. OPM et al. v. U.S.

(1) This claim of right for the President to declare statutes unconstitutional and to declare his refusal to execute them, as distinguished from his undisputed right to veto, criticize, or even refuse to defend in court, statutes which he regards as unconstitutional, is dubious at best.
Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 ¶ 41 (3d Cir. 1986).
(2) As in United States v. Lovett, 328 U.S. 303 (1946) and ACLU et al., v. Norman Y. Mineta (civil action no. 04-0262).
(3) As in INS v. Chadha, 462 U.S. 919 (1983) and Morrison v. Olson, 487 U.S. 654 (1988).

Comments

[edweird]

Meanwhile, Eric Holder is commemorating the anniversary of Stonewall at DOJ pride. Rotten tomatoes and eggs anyone?

[Stan-Musical]

Doesn't the President, any President, have an obligation to defend the laws that are on the books?

I know what you're saying about the Defense of Marriage Act. But that law is completely separate from actions by other states to allow gay marriage. The Defense of Marriage Act defines marriage as one man and one woman for purposes of federal law, regardless of how states may define marriage. We'll see if this lawsuit will force the federal government to recognize gay marriages from states that allow it. Legally speaking, a lawsuit would have to say that the federal government has no right to define marriage on its own, that it has to accept whatever definition any state has. Legally, constitutionally, that could be a tall order. We'll see.

[Schmitz Blitz]

No. Reagan, Bush I, and Clinton DOJ's each refused to defend laws they found unconstitutional.

[Artemis34]

See

Clinton Undercuts Defense Bill's AIDS Provision He'll Fight Discharge Law, Won't Defend Its Legality

http://www.aegis.org/news/ct/1996/CT960204.html

[bkbzipper]

United American Families Act needs to be passed

[jamessch]

Strike this law down Obama!

And pass the Uniting American Families Act!

[Artemis34]

At least section 3....

[jmpurser]

Well, we'll see. It's easy, clearly the right thing to do, and is in line with his campaign promises.

That gives you about a 40% chance of President Obama doing it.

Good luck.

[wontgetfooledagain24076]

I think you're HIGHLY inflating the odds, from what I've seen to date.

[DaCoach]

I get it now. If you say it's clearly unconstitutional, then it must be. And anyone who opposes your position must clearly be bigoted and homophobic. Yeah, that's a strong logical approach. However, don't you find those tactics strangely reminiscent of the Bush-Cheney years?

[Awake-and-Sing]

No.

I find standing up for social justice to be reminiscent of the 1960s.

[DaCoach]

I was there in the 60's. To suggest that the right to marry a fellow gay is anywhere equivalent to the civil rights movement is outrageous. The LGBT community is losing the respect of many of its supporters by insisting disagreement with the gay marriage issue constitutes bigotry. Name calling needs to be replaced by dialogue.

[Onepebbleinthelandslide]

Emma, here’s hoping you get some traction towards the cause with this new approach. With any luck President Obama will receive this and not make the connection between one of the authors of this petition as being the same Canadian civil rights lawyer who recently referred to him as an “LGBT brown noser” and went on to claim his views on marriage were “intolerant and bigoted”.

It’s not that I don’t appreciate your overall efforts, mind you. The LGBT cause can use all the help it can get. However, if you get the urge to resume digging potholes in the road to equality, we already have more than enough Perez Hiltons taking care of that.

[Matt Carter]

So, what? Emma has to handle Obama with kid gloves until Obama decides to do what's right?

Obama has proven himself more than worthy of those labels. Unless and until he decides to change that with his actions as Emma suggests, his actions speak louder than his words. Respect is earned, and Mr. Obama has done nothing thus far to deserve anything but contempt on this issue. I'd be delighted for him to prove me wrong. Put up or shut up, Mr. President.

[ProudLiberalDan]

We don't need more Perez Hilton's, but we need a whole lot more Harvey Milk's.

[ProudLiberalDan]

When are we as a community going to wake up and smell the coffee?

Obama was not and is not the pro-gay equality leader we had been hoping for.

Obama shared a stage with that bigot Donnie McClurkin.

Then he appointed Rick Warren to give his inaugaral invocation. (Gene Robinson only came along as a face saver AFTER the uproar about Warren).

No openly gay or lesbian people were appointed to his cabinet. In fact, he went out of his way to sideline all credible candidates.

"Someone" on Team Obama changed the language on his website from "repeal" Don't Ask, Don't Tell to "change" Don't Ask, Don't Tell, which was only changed back after the uproar.

We need to get over the disappointment that we have another DLC-triangulator as President and stop waiting for him to be something he's not and put the energy back on getting bills through Congress.
Get Congress to pass the legislation and then embarrass Obama into keeping his campaign promises.

Do you think Harvey Milk waited for the San Francisco political establishment to tell him his was alright and time for him to push for social justice for gays and lesbians? Of course not. The poltiical establishment will never tell you "now" is the time to push for social justice. They will always have an excuse not to have to stand up for us. ("Wait till after this election." "Wait until we we get this legislation through.")

[wereeverywhere]

Don't take it personally, PLDan. Democrats in general lack a backbone and refuse to stand up for the dispossessed. Obama's just keeping that fine tradition going; look at his decisions on civil liberties and conserving key elements of the 'war on terror.' Time to keep the pressure on.

[PlaceboStudman]

Someone needs to grab some cajones and challenge DOMA to SCOTUS. SCOTUS just made a ruling regarding medical marijuana saying that states do have the right to make laws that supercede federal law, and we're already seeing this with Marriage Equality. But, DOMA may not be changed until someone actually challenges it in the courts, and asserts the same logic to DOMA that was already expressed by SCOTUS regarding medical marijuana.

IF SCOTUS has any chance to remain relevant and consistent, they must realize that they would have to rule that the same rules apply, and that will nullify DOMA and make repeal of DOMA easier when Congress realize they have no reason to keep a nullified law on the books

[TheBaffler]

He will defend it, and his sycophants and apologists will be here in droves to tell us what a brave, sensible, pragmatic position it is.

[ProudLiberalDan]

And they will also attack your character for daring to interrupt their hero worship with an independent thought.

[Truthahn]

I HATE the way the word "pragmatic" is abused by Obama apologists. They constantly use it to spin his broken promises into the sensible and courageous decisions of a wise and benevolent Leader. So Obama deserves praise for the promises he keeps, AND praise for the promises he BREAKS. He literally deserves praise for EVERY thing he does. It's absurd.

[wontgetfooledagain24076]

Oh, don't you get it yet? Obama doesn't break promises, he's just playing 14-diminensional chess that you would never be able to comprehend. He's pragmatic! Besides, you can't go pushing for trivial things like civil rights, upholding the rule of law, human rights, or governmental transparency at a time like this, we gotta get health care reform! Plus, there are a lot of problems because the Bush administration made such a mess of everything. Oh, oh, and he's only been on the job for four months.

I think that's the extent of the apologies coming from the Obama cheerleader crowd. Feel free to remind me if I forgot any.

As far as I can tell, getting his daughters the dog is the only promise he HAS kept to date.

[meko]

Just as conservative Christians have worked for years to deny the validity of marriages in other churches, and in effect, enshrine themselves as a state religion, red states work to deny the validity of marriages in other states, ignoring the Full Faith and Credit Clause of the constitutions.

I have to struggle to remember that the Christians in politics are not the same as all Christians in real life. All I see anymore is hatred and bigotry when reading the news. If I didn't get away and volunteer, I'd believe that they were all as hateful and bigoted as the Evangelical Republican Party.

[ratcityreprobate]

Obama has already flip-flopped on DADT so it is probably unrealistic to expect him not to flip-flop on DOMA.

[ProudLiberalDan]

"New politics" is really just a rebranding of old fashioned Clintonian triangulaton where Obama sycophants and apologists expect you to be happy and settle for being triangulated against.

[CindyV]

So the self-proclaimed "fierce advocate" for gay rights has an opportunity to actually do something for the LGBT community? Don't hold your breath.

[PresidentRobertBooth]

A few points to consider.

1- DOMA, a law designed to interfere in the personal consensual lives of adults, was introduced by Bob Barr, who is now supposedly a libertarian arguing against government interference in the lives of Americans.

2- DOMA clearly violates the Full Faith and Credit Clause of the US Constitution, because it allows states to disregard and not recognise the legal decisions made by other states.

3- DOMA clearly violates the Equal Protection Clause, because it requires the federal government to not recognise same-sex marriages, yet does not demand such requirements of the federal government towards opposite-sex marriage.


So, the law is hypocritical, and plainly unconstitutional.

There is absolutely no logical legal argument that can be presented for why DOMA should be in effect.

By the letter of constitutional law, it should be null and void.

[Stan-Musical]

Well, this issue is controversial because people have different opinions.

DOMA was designed to define marriage at the federal level. Prior to DOMA, the federal government accepted the definitions of marriage from all of the states.

DOMA lawsuits will be a good test case of full faith and credit, because one of the clauses of DOMA specifically exempts the federal government and any state from recognizing gay marriage from other states.

Whether DOMA violates equal protection is a matter of how one evaluates the law. It requires the federal government not to recognize same-sex marriage, but it does demand recognition of opposite sex marriage. In fact the law as written defines marriage as a man and a woman. Only those who want a different definition of marriage would find a law that treats all men and all women equally to be in violation of equal protection. That is going to be determined by judges.

Of the dozen or so states that have been sued over gay marriage so far, several of their Supreme Courts have upheld state level DOMA laws. I know where you are coming from, but even judges in liberal states such as Maryland, New Jersey, and New York declined to overturn their states marriage laws when they were sued over gay marriage.

Believe me I know where you are coming from. But since it isn't obvious to many people that DOMA is bad legislation, this battle will have to be fought.