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Obama's DOMA Defense Unacceptable
When Barack Obama ran for President, he pledged to fully repeal the federal Defense of Marriage Act (DOMA) - a mean-spirited piece of legislation that Bill Clinton signed in 1996 for crass political reasons. Obama says it's still his intent to do so, but has yet to follow up with any action. Meanwhile, the U.S. Justice Department filed a brief late last week defending a constitutional challenge to DOMA. The brief did not merely argue against the lawsuit on technical grounds such as the plaintiffs' lack of standing, but advanced legal arguments that - if pursued by the courts - could greatly damage gay and lesbian rights. Most lawyers at the Justice Department who write these briefs are civil servants who cannot be replaced by a new President, and one of the authors was in fact a right-wing holdover from the Bush years. But Tony West, an Obama appointee and the brother-in-law of San Francisco District Attorney Kamala Harris, allowed it to be filed in court - and his name appears on the front page. As Assistant Attorney General for the Civil Division, West may argue that he's "just doing his job" - i.e., defending existing federal law. But the Administration can use discretion in these lawsuits, making this unacceptable.
The Politics Behind DOMA
Sponsored by Georgia Republican Bob Barr, the Defense of Marriage Act (DOMA) passed the Newt Gingrich Congress in 1996 - and Bill Clinton signed it into law while denouncing it as gay bashing. Clinton's re-election campaign then advertised on Christian radio, touting his passage of DOMA as being pro-"family values." The federal law did two things. It allowed states to refuse recognition of same-sex marriages performed elsewhere, which is why California was able to pass Proposition 22 in March 2000. It also barred federal benefits for same-sex couples (e.g., federal taxes, Social Security and immigration rights) - even if a state had marriage rights or civil unions.
In 2007, I asked Hillary Clinton if she would support repealing DOMA. She argued it "served a very important purpose," but agreed that Part 3 (which bars all federal benefits) should be scrapped. Barack Obama, who was running against her for President, promised to repeal the whole legislation. For this and other reasons, I argued that he would make a better President for the LGBT community. I did not fault Obama for his rhetoric that marriage is "a man and a woman," because his policy pledges were sound. While many gays and lesbians complained throughout the campaign, I retorted that he (a) opposed Proposition 8 and (b) would repeal DOMA.
Today, Congress has yet to pass - and Obama has yet to sign - legislation repealing DOMA. Which is not by itself a betrayal, because he never promised when the repeal would happen - and the recession has understandably kept the White House busy. Obama is cautious to a fault, and it's clear he has tried during the first year to avoid getting pigeon-holed like Bill Clinton did on gays in the military. Prop 8 was also politically devastating to the effort at repealing DOMA, because it showed that even California rejects marriage equality. As a community organizer, Obama understands that activists cannot expect change without mobilizing a base. While advocates must keep pushing Obama on his promise, it will require a few more political victories before DOMA gets repealed.
Justice Department Brief is a Betrayal
Action by the Justice Department to oppose a lawsuit challenging DOMA, however, is a betrayal. A gay California couple that legally married before Prop 8 passed has sued to repeal DOMA on constitutional grounds, after the Bush Administration defeated their prior effort. Last week, the Obama Administration - through the U.S. Justice Department - filed a motion to dismiss their case. The brief argued that the couple lacks standing to sue, because they had not applied to get federal benefits that married couples enjoy - nor did they attempt to have their marriage recognized in a different state. The case could get thrown out for that reason alone, but I don't have a problem with the Obama Administration raising those arguments.
But the brief then proceeds to defend DOMA "on the merits" - using language that is factually incorrect, and arguments that (if adopted by the courts) would damage future attempts to secure gay rights. The Administration argued that the Full Faith and Credit Clause of the U.S. Constitution does not bar states from denying out-of-state gay marriages, and they cited prior cases of out-of-state marriages that were between (a) an uncle and niece, (b) a 16-year-old and adult and (c) first cousins. Comparing same-sex marriage with incest and pedophilia is what one would expect from a Republican Administration, and for a court to agree with such reasoning is unhelpful.
I was not surprised that the brief said homosexuals are not a "suspect class," because that is what federal courts currently recognize (as opposed to the California or Iowa Constitutions.) But I was shocked to see it argue that DOMA is "related to legitimate government interests," because the federal government has an interest in saving money. In Romer v. Evans, the U.S. Supreme Court found that a Colorado proposition did not have a "rational basis" - because its only possible justification was anti-gay bias. For the Obama Administration to distinguish DOMA from Romer by dreaming up a "rational basis" will hurt future legal efforts on this issue.
But the most offensive part of the brief was how it defended Part 3 of DOMA, which bars same-sex couples from any federal benefits. Calling DOMA a "cautious policy of federal neutrality towards a new form of marriage," the lawyers argued that Part 3 "does not discriminate against gays for federal benefits." Which, of course, is patently false. DOMA is not a case of the federal government taking a "neutral" stance on a controversial topic. Part 3 expressly says the federal government will not recognize gay couples, even if a state chooses to acknowledge their marriage. Nor is it merely a "cautious" policy. Only twice has the U.S. Congress ever acted in its 200-year history to restrict marriage: (a) in 1865 when it made polygamy a crime, and (b) in 1996 when it passed DOMA.
Who Wrote it - and Who's Responsible?
Many federal employees are civil servants who cannot be replaced because the new Administration disagrees with their politics. And because the gay couple in this case had previously challenged DOMA when George Bush was President, it is no surprise that the Justice Department had attorneys ready to defend the suit. In fact, one of the lawyers who wrote the brief - Scott Simpson - is a Mormon Republican, and a holdover from the Bush Administration. Alberto Gonzales even awarded the guy for his legal defense of the Partial Birth Abortion Act. Arguably, the Obama Administration could not replace him with a new attorney.
But the first lawyer listed on the brief is Tony West, an Obama political appointee. West served as California finance chairman for Obama's campaign, where he raised at least $500,000. He is the brother-in-law of San Francisco District Attorney Kamala Harris, who strongly supports gay marriage and is running for California Attorney General. His wife, Maya Harris, was until recently Executive Director of the Northern California ACLU. The ACLU issued a joint statement this weekend with other groups condemning the legal arguments in the brief, saying they were "very surprised and deeply disappointed" with the Obama Administration.
Of course, there is no evidence that West wrote the legal brief - or even knew about it. His name was on the brief, because he heads the Justice Department's Civil Division (which handles all lawsuits filed against the federal government.) But that means he supervises the attorneys who wrote it, and he can be held accountable. Before gay marriage advocates start asking whether Obama or Attorney General Eric Holder authorized the legal brief, they should ask West: (1) did he review the legal brief before it was filed, (2) if so, why would he agree to have it submitted as written, (3) if not, would he have done so and (4) why were the arguments appropriate?
The Justice Department Had a Choice
West would probably say that he was "just doing his job." His career shows he has taken controversial cases and clients before, such as defending John Walker Lindh (the American Taliban) on charges of treason. White House spokesman Shin Inouye told the Los Angeles Times that the Justice Department was following its normal practice of defending current law. "The President has said he wants to see a legislative repeal of DOMA," he said. "However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."
Some advocates feel this is a double standard. The Justice Department chose not to prosecute officials in the Bush Administration for torture and other war crimes, even if their task is to "uphold the law." But prosecutors always have the discretion on whether or not to press charges, unlike a defendant forced to respond to a lawsuit. The Obama Administration arguably has a political double standard in this case, but it still doesn't answer the basic question: did the Justice Department have a choice?
Richard Socarides, a former top Justice Department official in the Clinton White House, argues that they did. "I know and accept that one of the Justice Department's roles is to (generally) defend the law against constitutional attack," he wrote this weekend. "But not in all cases, certainly not in this case - and not in this way ... Where there are important political and social issues at stake, the President should make a policy decision first and then the lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president's policy decision, the policy decision should always win out."
Moreover, consider how California Attorney General Jerry Brown handled the suit against Proposition 8. Rather than defend state law (as his predecessor did for Prop 22), his office argued in front of the Supreme Court that Prop 8 was unconstitutional. Kenneth Starr (on behalf of the religious right) intervened to defend Prop 8, which the court accepted. It is not unusual when a law gets challenged in court that some advocates fear the government will not vigorously defend it. Occasionally, the court allows them to get involved. The Obama Administration did not have to defend DOMA, especially when there are plenty of right-wing groups ready to do it themselves.
There has been a lot of talk this weekend from lawyers, who claim the Obama Administration had no choice. Much of this analysis has taken a strict legal approach, without considering the inherent politics behind these decisions. But one lawyer said it differently. "The law can be very fluid," he wrote, "and lawyers are taught in law school to find new ways to interpret words. Lawyers who craft new legal strategies and theories that sway courts are venerated in history as civil rights heroes ... Sure, the brief was a legal document, but it was also very much a political document ... Anyone who says that Republican and Democratic presidents alike don't let their politics influence their arguments before the courts is either a liar or terribly naïve."
I completely agree. Judges, at the end of the day, are politically connected lawyers who wear robes - and lawyers cannot pretend to live in an abstract ivory tower. In a highly emotional and political case as this, we cannot discount the consequences of "upholding the law" - and the Obama Administration should have used their proper discretion in this case. Obama cannot claim to support the complete repeal of DOMA, if the Justice Department spews out arguments that may adversely affect gays and lesbians when they fight for their rights in court. Marriage equality advocates must express their displeasure, as we hope that Obama gets the message loud and clear.
EDITOR'S NOTE: Paul Hogarth was an intern for Equality California in 2005, and received his J.D. at Golden Gate University. He is an attorney licensed to practice law in California, but this piece is not intended as legal advice. He actively campaigned for Obama in last year's presidential election. He is the Managing Editor of Beyond Chron, San Francisco's Alternative Online Daily, where this piece was first published.
Follow Paul Hogarth on Twitter: www.twitter.com/paulhogarth
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Great article. Obama better act soon on the promises he made to Gay Americans. Overturn DOMA and DADT now. We are losing more confidence every day that he will do as he said as a candidate. Obama and the Dems will reap the results of their actions come re-election. Whoever is advising Obama (Solmonese?) is giving him bad advice. There are no more pressing issues to the Gay Community than equal rights now.
It's too bad, but I still have high hopes for future changes. Politics is so frustrating sometimes. Here's a discussion of the matter from pandalous: http://www.pandalous.com/nodes/obama_and_gay_marriage
DOMA should be abolished. The law was written, Congress passed it. Congress can repeal it.
I haven't read all the comments posted here but the following lines from Hogarth's article
bothers me.
From Richard Socarides, a former top Justice Department official in the Clinton White House,....... "Where there are important political and social issues at stake, the President should make a policy decision first and then the lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president's policy decision, the policy decision should always win out."
Isn't that what Bush and Cheney did in regard to torture? Did anyone else pick up on that?
John Aravosis:
"I cannot state strongly enough how damaging this brief is to us. Obama didn't just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn't motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer and Lawrence shouldn't be interpreted to give us rights in any other area (which hurts us in countless other cases and battles).
He argued that DOMA doesn't discriminate against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get married and we can't). He actually argued that the courts shouldn't consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level."
http://www.americablog.com/2009/06/obama-justice-department-defends-doma.html
Moreover, Obama basically sided with the states who oppose gay marriage and he condemned the states that recognize gay marriage. Like President James Buchanan, permanent resident of history's dungeon for his efforts to placate the bigots of 1857 Dixie, Obama thinks the bigots are going to like him if he sides with them on DOMA. We shall see.
Obama's brief was not neutral. The canard that "he had no choice" makes no sense because he actually had an out: stay neutral. He could have said the US will not go against the states that recognize gay marriage. Instead he said that states which recognized gay marriage recently may not do so because the federal government has taken over the issuance of marriage licenses under DOMA to placate the bigots who want to deny gays the same rights to marry as straights have. So just find some prostitute presdient like Clinton, pass a law in Congress and take over something the states have been doing forever just so you can discriminate against a group like gays and take away their state legal protections - EVEN IF THEY DON'T LIVE IN YOUR STATE !!!
It shouldn't be a news flash that Obama is no Jerry Brown. But this is unacceptable. I understand that Obama has too much on his plate right now to jump gay rights issues to the top of the agenda, but the least he can do is not make existing laws even worse than they are now. This may be one place where his famous Vulcan mindset runs up against an inconvenient truth: some things, like the fundamental rights of our fellow citizens, are more important to who we are as a nation than our GDP, or even our position on torture. Not that he's exactly standing tall on that one either....
I doubt very seriously that Obama has had anything to do with the DOMA defense what's so ever. Obama can't be everywhere especially when there are 2 wars, an economic meltdown, an Iranian crisis, North Korea, etc. If you have a problem with it than take it up with the DOJ and Eric Holder.
He can goddamn sure make a clear statement on it though! after all its all he does is give speeches. I just one simple statement on the issue from him.
Yes
"The Choice to Defend DOMA, and Its Consequences
by Richard Socarides
Like many other gay people who support the president, and as someone who had hoped he would be a presidential-sized champion of gay civil rights from the start, I was disturbed by his administration’s brief defending the so-called Defense of Marriage Act (DOMA), filed late last week, in opposition to our full equality.
It had such a buckshot approach to it, a veritable kitchen sink of anti-gay legal theories, that it seemed expressly designed to inflict maximal damage to our rights. Instead of making nuanced arguments which took into account the president’s oft-stated support for repealing DOMA – a law he has called “abhorrent” – the brief seemed to embrace DOMA and all its horrific consequences. "
http://www.americablog.com/search?updated-max=2009-06-15T09%3A03%3A00-04%3A00&max-results=15
I see some serious legal hurdles in that the definition of marriage has always been between a man and a woman. What is being requested is really a change of definition and not at this point a matter of equal rights. Thus, the problem can only be solved through legislation. Taking it to the Supreme will only hurt. The Supreme will only kick it back and Obama is not a legislator. The only thing Obama can do is to speak for the cause. According to the latest stats it would appear that a majority of Americans are against Gay marriage at this point in time. Legislators depend on these voters to renew their jobs every voting season. You can see where this is going.
There are always legal hurdles when a minority group presses for full equality. But there is no excuse for the language used in the AG's legal brief. Any American found on the receiving end of that language would be offended and ready to throw down. Hate speech = Fighting words.
Worse our government used these words against us in a reckless manner during violent times and economic stress, such hate speech is likely to result in more violence against Gay Americans.
Marriage has NEVER been a RIGHT for anyone. it is a religious RITE. Gay folks deserve benefits. The state should not MARRY anyone. It is not their business!
Then too bad the Presiden'ts Department of Justice and his appointee signed off on a malicious legal brief to uphold DOMA -- which denies not just marriage, civil unions and the federal benefits of marraige to same sex couples.
Not enough it being made of the fact that DOMA doesn't just bar federal recognizion of gay marriage, but civil unions, and benefits too. It add to the sharpness of the knife in our backs.
Then why is it that a couple can marry without ever entering a church, but no one can marry without a license from the state?
Try this one out...
POTUS and the DOJ are in violation of the1964 Civil Rights Act title VI...
As the last I heard The DOJ receives Federal Funding, as does the White House..!
Now while gays are not specifically mentioned in Title VI it only follws that this would be prima facia
under the 14th Amendment and this Statues inarguable intent...!
It bars those receiving Federal Funding, from any act of Discrimination...under Title VI...
Now by this action POTUS and The DOJ "favors one group over another", the very definition of Discrimination...under the definition left us by Justice Douglas for this great Act of Congress the 1964 Civil Rights Act..
How is it not discrimination, and how do they not receive Federal Funding..?
So you see it is quite simple POTUS and The DOJ are guilty of discriminatory actions against all gay and lesbian Americans and others..
Thus they are also in violation of the 14th Amendment and must argue in open court that gays are specifically excluded from the protections of the 14th Amendment...to be exempt from the protection contained within this statute Title VI of the 1964 Civil Rights Act...
Here's the statue, The DOJ website..
http://www.usdoj.gov/crt/cor/coord/titlevi.php
Also you realized they used Federal Funds to argue to Discriminate, against the LGBT Community so they used the tax dollars of gays, against the gay community, which is persecution not just discrimination...!
Simple as that..
Good try but no cigar. Marriage has always been defined as a bond between a man and a woman. There is no precedent for a claim of discrimination. The definition of marriage has to be changed first. Federal legislation is the only way it is going to happen.
Hasn't marriage in the legal sense also been defined as between a white man and a white woman, and then a man and woman of the same race in many states? Didn't that legal definition change?
Well It worked...! Obama addressed this direct violation of title VI with his quick change in the Federal practice of discriminating against Federal employees I hit a bullseye in the dark wit my shot gun blast argument over Title VI..!
I wish we could take back all the time energy and money we thew away on the Obama campaign in California and have used that to fight Proposition 8 when it was on the ballot and to help elect either Jerry Brown or Gavin Newsome Governor.
Glad I voted Kucinich in the primaries -- the only candidate who supported full gay equality (not to mention single-payer health care and withdrawal from Iraq).
Kucinich was my favorite choice all along but I knew he didnt have a chance so I fell for Obamas lies.
So are you going to vote for a republican next time around? Get a life truthartbeauty.
Awake-and-Sing, your comment is so foolish! I hope Proposition never passes! You all blamed black folks for that debacle, instead of blaming yourselves, for not being clear about the Proposition. I hope it never passes!!
"When Barack Obama ran for President, he pledged to fully repeal the federal Defense of Marriage Act (DOMA) - . . . . Obama says it's still his intent to do so, but has yet to follow up with any action."
Obama cannot repeal DOMA. Only Congress can.
And as to whether the President has followed up with any action: He has been in office 5 months. There are many months to come for there to be followup.
He followed up with an action. His Department of Justice broke his campaign promise and defended DOMA with legal arguments that could have come from the belly of the Bush/Cheney administration. Regardless of "standard procedure", there was no requirement or obligation to file such a brief.
This is not a slight. This is an epic betrayal.
This may be fine for you. But it isn't for me nor do I believe for the majority of people I spoke with at the gay pride festival yesterday.
We are just now recovering from the shock that there is a knife in our chests and we will get louder and get busy.
We have found out that we don't have a friendly administration or even an indifferent administration. We have found out that this administration will take actions to actively harm us.
Unbelievable. To think we had the audacity to hope that this Administration would be different.
Wow. A lot of anger and no facts.
Try looking up repeal in a dictionary genius
No one asked him to repeal DOMA. But I know, its so much easier for you to set up a straw man. And no one asked him to fix anything in five months. We're asking him to stop doing the opposite of what he promised - read the article for details.
I am a liberal Athiest Democrat.
However, marriage IS between an adult man and an adult women. That is how mother nature made us and why the Federal Government has always chosen to encourage and reward having natural families.
Anything else is that person's choice. I have no problem with Civil Unions for all 50 states.
There is currently no biological evidence that people are "born" gay/lesbian.
Only after a generation or so of Civil Unions, will it be possible to re-evaluate this issue.
Obama has also said he supports Civil Unions, not Marriage, with all rights afforded by the State.
DOMA seems totally reasonable. It is saving taxpayers, who didn't choose to be gay, billions of dollars. Taxes are a Legislative issue.
With that said, I think Obama will unfortunately cave into your persistent protests and take over of the media and Hollywood.
DOMA bans civil unions too and denies the 1,138 federal benefits of marraige to gays.
Glad you think that's "reasonable."
If Civil Unions were legal in all 50 states, then I don't think DOMA would deny any State's rights.
Your movement is the most successful mobilization in Mankind. Not a singe public figure dare say anything negative about gay marriage. You have most straight women sympathetic to your cause without any public discussion.
Rights have to be earned. That takes time. If you prove that being Gay is not a Choice but something one is born with, then you have an argument. Right now there is no evidence, however millions of your supporters don't know that.
Why not try out Civil Unions in all states first. Its about time that there was a real discussion on this issue. The reason Iowa went Gay marriage is because many Americans think it is inevitable from the way the Media is covering the issue.
If your organization instead pushed for Civil Unions (with gradual earning of rights), as they were in the past, you might get more support in the end, and far less discord to our country.
Many Democrats will probably lose seats in 2010 if Republicans make Gay Marriage an issue. That could be why Kerry lost in 2004 in Ohio.
If I was president, you would get only civil unions! Marriage is between an adult man and an asult woman! Period!!!
Marriage is what we say it is. Read up on your history. Its been and meant a lot of different things over the years. Most of which would give people way more concern than gays and lesbians getting married. This is about equal rights, pure and simple. Homophobes will make up all manner of excuses to delay and deny, but their time is nearing an end.
Under DOMA, taxpaying gay couples are forced to subsidize heterosexual married couples
Yes, and they always want us to bring gifts and watch them get married. Those days are over.
"However, marriage IS between an adult man and an adult women. That is how mother nature made u"
Uhh no... marriage itself goes against everything mother nature intended. Do you see animals getting married? Do you think animals choose one partner and only mate with them? Marriage is in and of itself a societal construct, it has nothing to do with nature. The govt. at one point thought it necessary to ban interracial marriage, As for your apparent belief that sexuality is a choice, tell me, when did you stop liking guys? I'm just curious when you "chose" you liked girls. Get over yourself, you think anyone would choose to live a life that's going to more likely than not lead to discrimination, hatred, and being ostracized? Also, your belief that marriage IS between a man and woman IS patently false. For example, Iowans would tell you marriage is between two consenting loving adults. In Biblical times marriage would have been between a man and several wives, possibly even incestuous. And marriage in Europe began as nothing more than a contract between two families, more akin to a business deal.
"DOMA seems totally reasonable. It is saving taxpayers, who didn't choose to be gay, billions of dollars"
I'm glad you like being subsidized by gay people. At least the religious homophobes are just misguided dunces for the most part. You're nothing more than a callous, shallow excuse for a human being.
Why should hetrosexuals (and/or those who have children) be entitled to tax breaks that are not available to the LGBT community?
And by the way--I didn't choose to be gay. I was choosen.
There is more biological evidence that people are born gay (inlcuding the fact that it is found in multiple species, not just humans) that evidence suggesting otherwise.
I doubt you are a liberal, aethest democrat.
Are you really surprised Obama lied to get elected?
Not at all. But what's less clear is why anyone has a hard time understanding citizens fighting for equal rights for all.
YES! I had the highest of hopes for him.
Well reasoned and beautifully stated. The only thing that will turn this wretched and insulting defense of DOMA around is millions and millions of letter from the LGBT community and their allies to all the principles concerned. Obama wants empathetic judges, and the American people want an empathetic president, as well. It remains to be seen if he will be that president. I've started sending my letters.
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