Obama opposes Defense of Marriage Act

The Clinton-era federal definition defines marriage as the union of one man and one woman…

By DEVLIN BARRETT
Associated Press Writer
WASHINGTON (AP) — President Barack Obama insisted Monday he still wants to scrap what he calls a discriminatory federal marriage law, even as his administration angered gay rights activists by defending it in court.
The president said his administration’s stance in a California court case is not about defending traditional marriage, but is instead about defending traditional legal practice.
Justice Department lawyers filed new papers Monday seeking to throw out a lawsuit brought by a gay couple challenging the 1996 Defense of Marriage Act, or DOMA. Gay rights groups say that by doing so, the administration is failing to follow through on campaign promises made by Obama last year to work to repeal the law.
Department lawyers are defending the law “as it traditionally does when acts of Congress are challenged,” Obama said in a statement.
The Clinton-era law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.
Obama said he plans to work with Congress to repeal the law, and said his administration “will continue to examine and implement measures that will help extend rights and benefits” to lesbian, gay, bisexual, and transgender couples under existing law.
The government says in its court filing that it will defend the statute in this case because a reasonable argument can be made that the law is constitutional — a standard practice of government lawyers.
The mixed message got a mixed review from Joe Solmonese, president of the Human Rights Campaign, a gay rights group.
“It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act,” Solmonese said in a statement. “While they contend that it is the DOJ’s duty to defend an act of Congress, we contend that it is the administration’s duty to defend every citizen from discrimination.”
Walter Dellinger, a former solicitor general during the Clinton administration, praised Monday’s filing for striking “a delicate but appropriate balance between the government’s obligation to respect federal laws enacted by Congress and this administration’s policy and moral concerns about this particular law.”
The government’s previous filing in the case angered gay rights activists who supported Obama’s candidacy in part because of his pledge to move forward on repealing the law and the “don’t ask, don’t tell” policy that prevents gays from serving openly in the military.
The Justice Department is obligated “to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences,” said department spokeswoman Tracy Schmaler.
“DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage,” according to the filing by Assistant Attorney General Tony West.
The administration also disavowed past arguments made by conservatives that DOMA protects children by defining marriage as between a man and a woman.
“The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality,” lawyers argued in the filing.
Monday’s court filing was in response to a lawsuit by Arthur Smelt and Christopher Hammer, who are challenging the federal law, which prevents couples in states that recognize same-sex unions from securing Social Security spousal benefits, filing joint taxes and benefiting from other federal rights connected to marriage.
Justice lawyers have argued that the act is constitutional and contend that awarding federal marriage benefits to gays would infringe on the rights of taxpayers in the 30 states that specifically prohibit same-sex marriages.
Earlier this year, Massachusetts became the first state to challenge the law in court.

Updated: August 17, 2009 — 1:05 pm

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  1. Americans should appreciate how the Obama DOJ is fulfilling its responsibility to defend federal law while at the same time the President is urging Congress to reverse the very same law on grounds of fairness. Readers are left to make a comparison with the previous administration regarding its methods for dealing with Congressional acts that it found inconvenient.

  2. I totally agree with that way of using government, if that is what is happening, even if I don’t agree with our president’s views. That is why I do not like “liberals in conservative clothing.” The same should be done in the judicial arena, unlike what is normally done by liberal judges. Judges are to interpret laws as they are written, not attempt to change laws; that is for the legislative branch of government.

  3. David -

    Unless of course it’s the Supreme Court, whose job it is to create new precedents for other judges to follow.

    Also, and perhaps unfortunately, “interpreting laws as they are written” leaves lots of leeway for judicial interpretation, since most laws are not written without massive ambiguities and loopholes which require judicial interpretation to fill in.

  4. Guys, don’t get me started. I am about to fire off a firestorm of protest that would make a Mormon blush.

    If I hear one more conservative accuse liberal judges of being “judicial activists,” I may well go ballistic and start spewing diet Coke out of my nose right here at work. Over the past thirty years, far more judicial activism has been perpetrated by conservative Republican judges who want to pull the teeth from our laws against discrimination and monopolies than any liberal ever thought about doing in the past.

    There once was a time when the antitrust laws were interpreted, as David so naively says, “as they were written.” And that led to the big corporations (monopolists, in the lingo of antitrust law) lobbying Republican politicians to appoint judges who would add requirements to the law not set out in the text. And they did, to the point where the antitrust laws have effectively been eaten up by judge-made exceptions. These antitrust laws were passed by a Congress which was elected by the people, and de-clawed by appointed judges who ruled just as the big companies who appointed them wanted them to do.

    Ditto the civil rights and anti-discrimination laws. These laws are very simple, most of them less than a paragraph long. They have no qualifiers in them. And yet conservative judges, people who would walk a mile over broken glass to strike down a free lunch program somewhere, have added qualification after qualification. The result is that in most states, including Kentucky, it is nearly impossible to prove a civil case alleging employment discrimination.

    And that’s not even the worst thing they’ve done. Legal scholars have typically treated the procedural rules that govern cases as being “neutral” in nature, that is, the rules of the game are generally considered fair to all players. No more. The first assault on plaintiffs’ rights was the so-called trilogy of cases (Matsushita, Liberty Lobby, and Celotex) decided by the US Supreme Court in 1986, during the Reagan Revolution, which made it far easier for a Federal court to issue a summary judgment, that is, to dismiss a case without even a trial. This standard was considered so unjust by so many people that the Kentucky Supreme Court, interpreting a Kentucky rule having EXACTLY the same language as that of the Federal rule, expressly rejected the Federal approach for Kentucky state courts. Since then, probably 80-90% of the cases filed in Federal court in Kentucky for discrimination, antitrust, and the like have been dismissed on motions for summary judgment, without a trial.

    And as if that weren’t bad enough, the Supremes have now gone even farther. In Ashcroft v. Iqbal, a ruling in a terrorism case so stealthy that it has received little or no attention for its procedural holding, has made it even easier, in that now, a Federal judge can dismiss a case simply because he thinks that the allegations in the complaint are “not plausible,” a standard that, for the past seventy years, had applied only to things that really were implausible. Now, the case has been cited over 500 times since it was decided this spring, and judges are using it to dismiss all manner of cases that otherwise would at least have gotten to the summary judgment stage. This is very important, because only when cases are allowed to proceed to the stage where “discovery” is conducted, that is, documents exchanged and witnesses questioned under oath, that any real evidence produced. If a case is dismissed prior to that point, no one (including the judge) knows what the facts really are. Now, all the judge has to say is that, based solely on one document, the initiating complaint, he doesn’t believe the allegations, and the case can be dismissed as “implausible.”

    As the NYTimes has said:

    “In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true ‘no matter how skeptical the court may be.’

    ‘The sole exception to this rule,’ Justice Souter continued, ‘lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.’

    But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.”

    This is hardly interpreting the law “as written.” In fact, this may be the most blatant violation of the rights of ordinary citizens ever perpetrated by the Federal judiciary, and that’s going some. And, David, this is being perpetrated by conservative judges who always seem to rule in favor of large corporations and insurance companies.

    Many lawsuits that appear implausible when filed turn out to be absolutely true. When the Ron Berry lawsuit was filed in Lexington ten years ago, lots of people found it implausible that high officials of the local government would cover up pedophilia. Everyone believes it now. When the first Catholic sex abuse cases were filed, many people found it implausible that high officials of the Catholic church would cover up pedophilia. Everyone believes it now. Ditto the Fayette County Board of Education in the Maner case, which has been mentioned on this blog.

    And here’s the thing, David. The worst enemy of conservative jurisprudence is the jury trial. Lawyers love to strut around and use sesquipedalian words that no one understands and justify the actions of their clients with technical arguments that sound fine in expensively furnished board rooms, but that would evoke howls of laughter in the average barber shop. And the jury trial is that barber shop: It is one of the few forms of democracy left to us, the ability to believe and disbelieve people as our hearts and minds dictate. And they want to take that right away from us. I was re-reading the Declaration of Independence the other day, because someone gave me a little booklet with it and the Constitution in it. One of the reasons we broke from the British was their interference in our right to a trial by jury. Maybe we need another revolution today against the bought and paid for Federal judiciary.

  5. For more recent news, how about Justice Sotomayor and her restraint from overruling the city government of New Haven? She caught a lot of h*ll for her ultraliberal judicial inactivism.

  6. Jose -

    But Sotomayor was obviously wrong on the New Haven decision, because the city had refused to follow its own stated rules and standards for giving promotions. Which I think is a much weaker civil rights case than saying that the defined process itself was designed to produce racial inequality.

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