Some Thoughts on the New Obama Administration DOMA Filings

Yes, in the midst of yesterday's big health care news I missed covering another very important issue for our community. I apologize for that. But anyway, President Obama's Justice Department is still defending DOMA... Just in a "kinder, gentler" manner.

Reply Brief

And here's President Obama's statement from yesterday as he tried to walk a tightrope between calling DOMA discriminatory and not calling it illegal.

THE WHITE HOUSE
Office of Media Affairs
______________________________________________________________________
For Immediate Release August 17, 2009
Statement by the President on the Smelt v. United States Brief

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.

OK, so at least President Obama now says he'd like to see a legislative repeal of DOMA. It's a start. However, I'm still perplexed as to why he feels his Administration is required to defend DOMA in court.

After all, when did this kind of discrimination become perfectly legal? Last I remembered, President Obama is a Constitutional law scholar. I guess he forgot that Article IV, Section 1, of the US Constitution says:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

And Section 1 of the 14th Amendment to the Constitution says:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

(emphasis mine)

And no, I didn't edit out any "... Um, uh, except for those devil children hedonistic homosexual sinners!!!1111!!!!!111111" from those quotes. That's what our Constitution actually says. And in reading the GLAD court filings challenging DOMA, it becomes crystal clear that this unconstitutional discrimination is hurting families in a way that our Founding Fathers & Mothers would never condone.

Furthermore, GLAD makes another great point specifically on the question of whether Section 3 of DOMA (barring the federal government from recognizing otherwise legally married gay & lesbian couples) passes Constitutional muster.

GLAD believes that DOMA Section 3 violates the federal government's promise of equal protection of the laws contained in the 5th Amendment of the United States Constitution. It singles out just one class of marriages for disrespect and then denies those same-sex couples every single legal protection and responsibility otherwise available to married couples.

DOMA represents an extraordinary intrusion by the federal government into marriage law, an area of law that has always belonged to the states. We believe there is no adequate justification for the federal government's unprecedented non-recognition of valid state marriages.

And after looking at the 5th Amendment, it seems to me that The Bill of Rights backs up GLAD's argument.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(emphasis mine)

Again, the Constitution clearly calls for equal protection under the law. It also declares that the government can not simply deny one group of citizens the same rights and responsibilities afforded to other citizens. And finally, I'm having a hard time seeing how the federal government can simply deny to recognize civil marriages, thereby denying 1,138 federal rights and responsibilities automatically provided to heterosexual married couples, that these states with full civil marriage equality have every legal right to recognize.

So am I glad to at least see President Obama ensure that his Justice Department not misuse these court briefings to maliciously attack and slander LGBT families. And yes, I am glad to see that he wants to follow through on his campaign promise to work with Congress to pass a full legislative repeal of DOMA. However, I still don't see why he feels obligated to defend what may be a legally indefensible statute. If past Presidents could allow their respective Justice Departments not to defend statutes they felt were unconstitutional, why can't President Obama do the same today?

Still, I'm glad we're making progress on ending this unfair and wrong federal policy that severely hurts LGBT families. If Obama succeeds in repealing DOMA by way of Congress, I will celebrate. But in the mean time, I hope the DoJ lawyers are proven wrong in court. ;-)