Obama's Law Professor Says DOMA Unconstitutional
A campaign is underway to encourage the Department of Justice to refuse to defend the Defense of Marriage Act in the legal challenge launched by the Massachusetts based Gay and Lesbian Advocates and Defenders.
On a grassroots level, individuals are sending bright pink postcards to Obama urging him to not "flip flop" on DOMA (the President committed to repealing DOMA during his campaign, but has since erased all mention of the repeal from the White House website).
Today, Laurence Tribe, the Harvard Constitutional law professor who hired Obama as a research assistant in his first year of law school, supported the claim that DOMA Section 3 is unconstitutional.
Professor Tribe told Paul Sousa, founder of Equal Rep:
"I certainly agree (a) that Section 3 of DOMA is unconstitutional, at least as applied to couples like those who are currently challenging it in federal court here in Massachusetts.... I'm not at all reluctant to have it known that I think the equality component of the Fifth Amendment's Due Process Clause forbids the federal government to deny same-sex spouses benefits identical to those that it would grant to opposite-sex spouses when the spouses are "married" under the law of their state -- that is, when the spouses were married and reside in states where the law forbids a distinction between same-sex and opposite-sex marriage and rejects the DOMA definition of 'marriage.'"
A legal memo supporting the Department of Justice's right to refuse to defend clearly unconstitutional laws can be found on the DOMA Flip Flop website.
The Department of Justice has until June 29th to decide whether to defend DOMA against the GLAD challenge.
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"DOMA Section 3 is unconstitutional."
No kidding. So is Prop 8 and any other state legislation/initiative/amendment etc that denies equal protection/privilege. The states are not allowed to disregard 14th amendment rights, no matter how many other rights they have.
How about we worry about warrentless wire tapping, torture, cyber security privacy, Patriot Act, HR645 before an Obama lawyer has the nerve to lecture us on what is unconstitutional!
Why leave all this out as well? Are they not unconstitutional as well? Or do you just think our unconstitutional stuff is lesser unconstitutional?
Just out of curiosity have there been any prosecutions under DOMA?
As far as repealing it goes...DOMA was not an executive order and thus cannot be repealed by the stroke of a pen. Currently the Obama administration is involved in trying to pass legislation that helps a much broader sector of the population and doesn't see the will in Congress to over turn the act. That's the political reality of the situation.
Just out of curiosity
Where does it state, or demand, or authorize, or even threaten, plead or beg, in the legal Civil Contract of Marriage, that sex be partaken of? Where does it state how many children you must have to engage in said Civil Marriage Contract? And if not, why is gender of the 2 parties involved in the contract, even considered?
Nice nonanswer
That would be why we need to get it in front of the SCOTUS, because Congress doesn't look like it will be acting any time soon!
Once again. What does that have to do with Obama? Are you expecting the White House to bring it before the court for you?
"legislation that helps a much broader sector of the population"
I'm afraid that numbers are not a measure of justice. If ONE person is denied constitutional rights, then that is enough to make it a serious issue.
I think it's unconstitutional as well, but because of the tenth amendment. Since the Constitution doesn't grant the federal government any power over marriage, it resides with the states. So if a state recognizes a marriage, it violates the tenth amendment for the federal government not to.
I think it would be technically sound for the federal government to not recognize any marriages at all, actually, but, otherwise, you're right.
Exactly. Marriages recognized by the church.
Civil unions recognized by the state. Everyone gets a civil union. You want a marriage ceremony? Go to your church or temple.
Civil unions grate you all legal rights.
Religious marriage grants you rights under whatever faith you practice.
Europe has the right idea and we should follow their example in this.
DOMA is unconstitutional, most civil rights laws were struck down based on intera-state commerece laws. States could not do business if employees (black) traveling from the north to south coud not find hotels, meals, etc.
How can you relocate an employee to a state if he will no longer be married, and can no longer cover his/her spouse on insurance. Or let's say a SSM couple already moved to a state that does not recognize their marriage (like I did). A diviorce is not possible, and you have to move back and live in MA for 6 months to have standing to get a divorce, so basically to break up is to pretend there was no marriage. If one of them gets a traditional marriage, they are a bigamist in 6 states, yet can't get a divorce in them with out moving there, and are not a bigamist in the other 44 states. Talk about intra-state commerce complicated, if you can't travel on business due to fear of being arrested.
And what happens with estate laws when some assets, like a vacation home, are in the person's SSM state, does their SSM spouse inheriet, or does the traditional spouse inherit? What if their are children from both marriages, which children are favored first? All states and the Fed. Gov. need to recognize these marriages, especially for child support since most states view children conceived in a marriage are children of the marriage (for lesbian couples).
Doesn't insurance provided by a private employer carry from state to state? If a state doesn't recognize same sex marriage then that shouldn't afffect what a private employer offers. As to inheritance- having a will and putting property in both names solves that. Why would you fear arrest- is there a criminal penalty for being married in one state but not in another?
The Justice department has a duty to defend the laws of the United States. If the administration doesn't like a law then get Congress to appeal it but until then we are a nation of laws and their job is to enforce the laws passed by Congress no matter their personal belief and if they have a problem then the individuals need to protest by resigning.
No. Health insurance does not follow from state to state. If your employer does not offer domestic partner benefits then you can only cover your children (not partner's children in your house) and a legal spouse in that state. If employeer self funds the plan, it falls under fedal law and not state law. It's what they call ERISA, so even in a SSM state an ERISA policy does not have to cover the spouse of a gay couple because of DOMA. DOMA is causing more children and adults to be uninsured, which drives up medical costs since they have to go to an ER to get any kind of treatment.
The federal goverment also taxes employees who use domestic partner policies. Let's say the employer chips in an extra $250/month to cover the same sex partner or spouse, well the goverment considers that $250 more income per month and taxes it (imputed income). This does not happen to married couples that meet the DOMA definition. Not everyone can afford an attorny to get wills and medical powers of attornies done right, and I will tell you it is a pain to have to travel with them all the time (vacation), just in case, to prove you really do have those rights. My parents don't have those documents and don't have to travel with any extra forms because they said "I do" and meet the DOMA definition.
See Michael Rowe's Profile
Great piece!
I'm surprised Obama passed his classes in Constitutional Law.
That's OK, Barack - the Underground Gay Economy is thriving more and more, in part due to the myriad of federal and state laws that exclude our family from America. (i.e. - the IRS can suck it) Cash is good for us - Hate is bad for America.
OH, and I wouldn't care what a law professor thinks. I think our legal system is seriously lacking for many reasons but no one ever does anything about it.
Lets see... You do not even have the intelligence to pick a good spouse and the fortitude to find a way to fix YOUR problem. Your marriage is a failure because YOU and YOUR other half failed. Not because I or my partner, or any other gay couple, caused the problems of your failed marriage. I do not think I would want such an abject failure to define anything like marriage for anyone, much less gay peoples.
What do law professors know? They only STUDY THE LAW.
I think Gays should be given the opportunity for legal status equivalent to marriage but not to call it marriage because that would be changing the definition of marriage. I don't understand what all the fuss is about. I guess they want it to be called marriage and viewed just like other marriages. Frankly, if I were gay I wouldn't want it. I was married and got divorced. My ex wife got lots of money from her family for legal fees. Plus the court was incompetent and did a lousy job. I had to overturn two judgments in the appelate court. Eventually I ran out of money and had to defend myself. The judge discriminated against me because I was not an attorney.. As a result I lost a lot of money that really was mine according to the law but the faulty judgment took it from me. In these courts, justice goes to those who have a lot of money. It's one of the bad things about our american society - that only money matters. Moreover, in family court I found a number of judges to be lazy and incompetent so you never know what is going to happen in the courtroom no matter what the fact are. You want to get married - then get ready to deal with the stupidity and incompetence of family courts.
Yeah, I agree!! And while we're at it, let's make it illegal for interracial marriages! And we need to make those uppity blacks sit at the back of the bus, and have different restaurants, and restrooms, and water fountains, and schools!!!
this is not about what gays want, it is about removing descrimination from the US legal system.
Funny that you defend the "definition of marriage" (why?) and then assert that marriage isn't worth having so same-sex couples shouldn't get it. And, of course, you point out cons of marriage while ignoring all the pros including the right to not have your spouse deported, post-death inheritance rights, hospital visitation rights, spousal financial benefits, recognition in areas that recognize marriage but not civil unions, etc.
But, let's take your scenario: If you have an exactly identical institution, what's to stop the same negative effects (the ones that happened to you) from happening?
Marriage is religious terminology.
Civil Unions is legal terminology.
All citizens of the U.S. have a right to civil unions.
Churches can define their own requirements for marriage. But they can't deny legal rights to others not of their faith.
The U.S. is not a Theocracy. It's about time people started to recognize that.
I just have to say that this is the most thoughtful, informed and thorough forum for discourse on this important civil rights issue that I have seen in a long time.
I cannot believe I missed all the good debates. I fail.
I' consider myself a moderate conservative. I'm a heterosexual recovering Catholic of 25 years now . I have ALWAYS despised "faith-based" policy making. I think gays should have the same legal right to marriage as heteros. It's not about religion, it's about equality. One thing that would greatly benefit homosexual rights advocates is helping the "radical hardcore in your face" advocates for gay causes understand something factual. I will now write that fact. Putting on public displays simply for shock value just ends up hurting your own causes. Here's an example. I was watching a news program on cable and the issue of gay marriage was being talked about. While one person is strongly voicing her opposal to gay marriage the program runs a clip of two "leather lovers" at a public protest in D.C.. Both are nearly naked. One has the other bend over while the other whips his buttocks a few times and then when the whippings done they kiss. Of course intelligent persons KNOW that those 2 are not even close to being a fair representation of their community, but somehow those are the ones that get the most cameras pointed at them. It hurts your cause and credibility and scares away undecided heterosexuals back to the opposite side of yours.
Sorry to disappoint you but we do not have control over everyone in our community. Just as no one can stop people from joining the KKK, people don't consider the KKK to represent all white people, do they?
Part of the problem is that for the media boring suburban same sex couples are not so news worthy - so 'shock value' couples of behaviour tends to get more air time.
At the the end of day - what ever their fetish the leather couple has the same right to have their relationship protected in law just like any different sex couple who are into fetish. The reality is that around teh world there is actually for different sext fetish couples that same sex.
Samesex couples come in all shapes and flavours and although diverse they have one thing in common, they are being discrminated against because of their sexual orientation. To try and exclude any sub group just for PR purposes would be bring discriminationand division into the community and would thus be hypocritical,
Good point and I'm not disappointed Im here to learn and dispense info where I can. Maybe the greater problem is why do news media seek out the worst in people or the worst actions by people with their rollling cameras? For example car chases, KKK burning crosses and spouting hatred and ignorance, etc..... I know that we can't be naive as a people and pretend these things don't exist, but it seems news media from every side of the spectrum fight and fall over each other to capture the worst in human behavior and rarely the best. I'm sure someone is going to reply to this saying "it's because the market demands the if it bleeds it leads stories and that's just plain sad if statistics back that up
How easy it is to ignore heterosexual displays such as, oh say things like Mardi Gras, or Bike Week, or how about the other disgusting displays we are forced to endure during College Week here on the coast. None of these events really do much to help the heterosexual cause of holding our community to a higher standard than your very own group willfully and joyfully displays as well. Clean up your own back yard, before you complain about mine. It will make your case a whole lot more effective and believable. I do not condone some of the behavior from either side of that coin. Nor do I control the behavior of anyone involved.
so you are all for giving equal rights to homosexuals as long as they dont express themselves publicly? real big of you
He didn't say that they shouldn't do it or that he was offended personally -- he said that such public behavior is poor PR and hurts the cause when the media hype it, which everyone knows it does. Don't know if you're old enough to remember the Civil Rights movement, but one of the things that has always struck me is how many of the Black marchers wore their Sunday go-to-church clothes so that they would look extra respectable and the subconscious impression that made on people looking at the news photos. There was a huge difference in the public perception between 'putting down a riot of hoodlums' in Chicago or Newark and turning a firehose on men in suits or ladies in pink dresses wearing flowery hats.
I don't have any pat solution or presumptuous suggestions about the problem of balancing ability to be public/stigmatizing subgroups/trying to make a good impression on the public, but thoughtful consideration recognizes that the problem exists.
So demand that the media stop exploiting the issue with unfair representations. Don't blame "the cause."
Have you ever noticed that a captain on a ship is certified to preform marriages and it is legal, hmm I'm missing something here? and the christian right has no authority on board on of those vessels whose captain can preform such a ceremony, it would be interesting to see one of these bellicose bast****] object to a captains prerogative to be dismissive of ignorance and set them free in a life boat and tow them behind for being disruptive to the well being of the ship.
Its a civil contract and nothing more, the state and religion have no business arbitrating any phase of the relationship, I'm a 63 year old male in complete control of his faculties, happily married for 13 years to an very exceptional woman, have ridden Harley's all my life, and have ejoyed a life that most men would consider esoteric and it was, lets be a man take's on a whole new definition when you can't stand being around your own gender, literally] ... cont,
Don't forget that a justice of the peace or a judge can ALSO perform weddings!
I've not noticed that captains on a ship can perform marriages, only that it is an urban legend that captains on a ship can perform marriages.
Persons who are authorized to perform marriages by being clergy, justices, notaries, etc., who also happen to be captaining a ship can perform marriages, following all the laws of their home jurisdiction regarding marriage, such as age and license requirements.
Captains must be authorized by their flag country to perform marriages, and if they are authorized to perform marriages, it need not be on a ship.
Captains are only required to note in their official logs marriages performed on a ship; such requirement does not denote authority to marry persons, only if the captain has been authorized to perform marriages by his or her flag country, can the captain marry people.
In particular, American captains who are not authorized to perform marriages on land by state law are explicitly forbidden to perform marriages at sea by federal law.
And military captains in America are forbidden to perform marriages at sea at any time, even if authorized to perform marriages on land.
Tribe: "'I'm not at all reluctant to have it known that I think the equality component of the Fifth Amendment's Due Process Clause forbids the federal government to deny same-sex spouses benefits identical to those that it would grant to opposite-sex spouses when the spouses are "married" under the law of their state -"
Fifth Ammendment: "No person shall...nor be deprived of life, liberty, or property, without due process of law; ......."
How does DOMA violate "due process of law"? It was enacted through the legislative powers granted by the Constitution to the House and the Senate.
Where I see a possible conflict is with the Full Faith and Credit Clause:
Article IV
Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
You're right about DOMA violating the Full Faith & Credit clause of the US Constitution. It's so freaking obvious, that I can't imagine how Pres. Clinton (himself a lawyer) could have signed it into law not knowing it is so completely violative of both the letter and spirit of the text.
"How does DOMA violate "due process of law"? It was enacted through the legislative powers granted by the Constitution to the House and the Senate."
--To the extent that DOMA impairs the ability of people to marry, under SCOTUS precedents it appears to violate the "liberty" that is protected against arbitrary governmental invasion or abridgment by substantive due process. You appear to be referring to procedural due process.
More importantly, I think you misread what Mr. Tribe said in the excerpt you included in your post. Tribe said DOMA violates the equality component of the 5th Amendment's Due Process Clause. The Equal Protection Clause resides in the 14th Amendment which by its text applies only to the states. The SCOTUS held back in 1954 in the companion case to Brown v. Bd of Ed that it would be unthinkable that the Constitution commands the states to grant equal protection of the laws while allowing the federal govt to violate the same principle. So it has since read into the 5th Amendment's Due Process Clause an "equal protection component" which operates the same way for purposes of constitutional analysis. That's what Tribe was referring to and he's probably right, IMHO.
Clinton signed it knowing it was unconstitutional and that it would be challenged, but he also wanted to appease the flat-earthers in Congress. Not the first or the last time our community has been used as a political football.
I didn't say that DOMA violates Full Faith and Credit; I said there's a possible conflict. Baker v. Nelson states that it is not unconstitutional for a State to refuse to recognize SS unions as marriage, and, by implication, it is not unconstitutional to give married couples benefits it does not give to SS unions. But what if a SS couple from State A were to go to State B where SSM is legal and marry there? Would State A now have to recognize that union as marriage within its borders and give full marriage benefits to the couple? Doesn't Full Faith and Credit require State B to honor the laws of State A and refuse to marry the couple from State A? What happens if a legally married LGBT couple from State B moves to State A? Very tricky problem.
Insecure "macho" "men" are scared by gay marriage.
While real straight men couldn't care less about it!
Btw: every guy in a religious skirt spouting homophobia =
a self-hating queer who cannot get over himself. Until
he comes out of the closet only to bounce back into it
while blurting out stupid comments about "being cured".
BTW: gays are not defined by the cloths they wear, and wearing a skirt or any cloths does not make one gay.
That's true. I knew a transvestite when I was living in the Seattle area. Nice guy, straight as an arrow when it came to who he was attracted to, he just wore women's clothes.
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