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That's the date that the DOJ has to respond to a much more organized and LGBT establishment-backed challenge to DOMA by GLAD in Massachusetts.  The legal questions about the constitutionality of DOMA are the same as the now infamous California case, but this time the Plaintiffs are backed by the mainstream LGBT organizations.  Given the backlash that the California response has caused, the Obama administration cannot hide behind the DOJ on this one.  The administration and the DOJ leadership better be involved on this one.  

Note that the Administration has every right to argue against a federal law it feels is unconstitutional:

The President of the United States has an "undisputed right to... refuse to defend in court, statutes which he regards as unconstitutional."4 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 Justice Department has, historically, refused to defend statutes that are unconstitutional because they violate the rights of citizens5 and statutes that are unconstitutional because they violate the separation of powers.6 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).

Operation DOMA Flip Flop

Find out more about the Massachusetts-based DOMA challenge here:

GLAD challenge to DOMA in Mass.

Originally posted to cdolan on Wed Jun 17, 2009 at 09:32 AM PDT.

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Comment Preferences

  •  This should provide an opportunity (16+ / 0-)

    to see if the recent brief was a slip up or if it reflects deliberate policy.

    •  DOMA is the least promising alternative (3+ / 0-)
      Recommended by:
      oldjohnbrown, Geekesque, SoCalSal

      for us to get Obama's backing.  Even though I care passionately about legal recognition for my marriage, I am starting to thing that strategically our priorities may lie elsewhere.

      The administration has signalled pretty consistently that hate crimes legislation, ENDA, DADT, and domestic partern protection, are all more palatable for them and will be higher priorities.

      If that's the art of the possible, I'll take it.  

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Wed Jun 17, 2009 at 09:50:25 AM PDT

      [ Parent ]

      •  There is a range of responses (1+ / 0-)
        Recommended by:
        lgmcp

        that they could make in comparison to that earlier brief. While I'd like to see a strong commitment to the repeal of DOMA, I'm willing to try to be objective in evaluating other responses that they might make. They pretty have no where to go but up.  

    •  I'm not optimistic. (0+ / 0-)

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Wed Jun 17, 2009 at 09:55:04 AM PDT

      [ Parent ]

  •  That'll be a great weekend to be away (13+ / 0-)

    from the Internet.  

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Wed Jun 17, 2009 at 09:38:14 AM PDT

  •  another moved goalpost (4+ / 0-)
    Recommended by:
    DaleA, ExStr8, Dems 2008, AquariansRule

    i'm fed up.

  •  I'm sure they'll defend it. (1+ / 0-)
    Recommended by:
    Geekesque

    They're obliged to.  The question is how they will, I suppose.  I could see them positing "rational review +"  or intermediate scrutiny as the appropriate test and then defending it on those terms.

    We are building a team that is continuously being built. - Sarah Palin

    by burrow owl on Wed Jun 17, 2009 at 09:48:33 AM PDT

    •  They are not obligated to defend it (6+ / 0-)

      See edit to diary above

      •  They have to defend unless the law (1+ / 0-)
        Recommended by:
        LordMike

        is clearly unconstitutional under prevailing law or the law restricts the executive branch.  DOMA meets neither of those exceptions, so Obama should and will defend it.

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Wed Jun 17, 2009 at 10:00:51 AM PDT

        [ Parent ]

        •  If the shoe fits... (2+ / 0-)
          Recommended by:
          ExStr8, lgmcp

          Assuming that is the standard I would argue, and candidate Obama would have likely agreed, that under a Federal equal protection analysis, Section 3 of DOMA "is clearly unconstitutional under prevailing law[.]"

          •  How does it violate the EP clause? (1+ / 0-)
            Recommended by:
            burrow owl

            Unfortunately, sexual identity is not a protected class, so DOMA only gets rational basis review.

            •  That's why I could see him making the argument (1+ / 0-)
              Recommended by:
              lgmcp

              that DOMA should get the "rational review w/ teeth" standard of Lawrence & Romer, which is a plausible argument under current law.

              We are building a team that is continuously being built. - Sarah Palin

              by burrow owl on Wed Jun 17, 2009 at 10:14:29 AM PDT

              [ Parent ]

            •  Even under rational basis... (3+ / 0-)
              Recommended by:
              oldjohnbrown, ExStr8, lgmcp

              .. it does not stand (to the extent the traditional EP analysis still applies).  See cases like Romer v. Evans and the various state marriage cases that find that this kind of dispirate treatment does not stand under rational basis review.  We will have to wait for GLAD to fiel the summary judgment brief for the full EP argument, but here is their quick and dirty (from their website):

              DOMA Section 3 Violates Equal Protection Guarantees: By requiring all federal departments and agencies to disrespect the valid state-licensed marriages of same-sex couples but follow state determinations of marital status for all other married couples, DOMA Section 3 violates the federal government’s promise of equal protection of the laws contained in the 5th Amendment of the U.S. Constitution. DOMA Section 3 takes Massachusetts married couples and divides them into two groups – those who are respected and those who are effectively "unmarried" by the law and denied all federal legal protections and responsibilities. There is no adequate justification for the federal government to single out only one group of Massachusetts marriages for different treatment.

              •  I like it (0+ / 0-)

                I haven't read Romer in a long time, but the above analysis seems reasonable.

              •  "Preserving scarce resources" works for RR. (0+ / 0-)

                We are building a team that is continuously being built. - Sarah Palin

                by burrow owl on Wed Jun 17, 2009 at 11:06:37 AM PDT

                [ Parent ]

                •  That argument failed in Romer under RR review. (1+ / 0-)
                  Recommended by:
                  oldjohnbrown

                  Even if you could come up with an argument, Courts (even in RR) will see through a false argument to see invidious discrimination as is going on here. As the Court said in Romer, "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."  The Respondents in Romer tried the scarce resources argument and it failed under RR.  

                  What scarce resources, specifically?  

        •  Well, a bit flimsy perhaps (2+ / 0-)
          Recommended by:
          burrow owl, cdolan

          but it seems that DOMA  is in fact restricting Obama's ability to confer retirement benefits upon his employees.  Silly, perhaps, but already in use as a defense to why his recent offering is so petite.

          "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

          by lgmcp on Wed Jun 17, 2009 at 10:04:51 AM PDT

          [ Parent ]

        •  It IS clearly unconstitutional. (0+ / 0-)

          See the equal protection clause of the 14th Amendment.

          See also Loving v Virginia.

          illegal, n. A term used by descendents of European immigrants to refer to descendants of Indigenous Americans

          by ricardomath on Wed Jun 17, 2009 at 11:42:24 AM PDT

          [ Parent ]

    •  They will defend it, sadly (1+ / 0-)
      Recommended by:
      ExStr8

      despite the excellent information in the diarist's update.  This is their realpolitik assessment at this time -- that Obama will support all our rights up to, but emphatically NOT including, the M word.  He has said as much on every occasion, n'est-ce pas?  Which means that we had damn well better some progress on all those OTHER rights like ENDA.  

      I could even be cheered by a federal DP act -- and yes, I know, separate can never be equal.  But it would be a useful step in the acclimatization process.  Out means visible.  The local and private DP benefits we obtained, did not make the sky fall, and the fact that we exist and are neighbors makes folks get over their fears.

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Wed Jun 17, 2009 at 10:01:49 AM PDT

      [ Parent ]

      •  Teases, but does not touch the M word (2+ / 0-)
        Recommended by:
        oldjohnbrown, lgmcp

        I know it is a nuance that is often lost in politics, but opposing DOMA Section 3 is not the same as supporting marriage equality.  It merely states a position that marriage should be left up to the States and that the federal government should recognize the marriages recognized by the various States.  This seems consistent with Obama's current (but disappointing) position on marriage.  

        •  Interesting, and sounds right ... (0+ / 0-)

          but the political fallout just won't be worth it, to them.  

          No matter what the LANGUAGE of the act says (if narrowly contrued), American voters will see and judge on the plain (and extremely hateful) broad intent of the act -- and on its very name.

          "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

          by lgmcp on Wed Jun 17, 2009 at 10:16:48 AM PDT

          [ Parent ]

      •  DOMA prohibits DP recognition (2+ / 0-)
        Recommended by:
        oldjohnbrown, lgmcp

        it isn't about "marriage" vs "civil unions".

        DOMA prohibits any recognition of any kind of legal rights for gay families.

        And Obama will defend it

        Meet the New Boss - same as the Old Boss - the Who

        by tiponeill on Wed Jun 17, 2009 at 11:37:51 AM PDT

        [ Parent ]

        •  Yes and that sucks bad (0+ / 0-)

          but I still think we have a more realistic chance of forward progress on an entire agenda other than DOMA.  Hate crimes, ENDA, and DADT are worth doing, and IF we can get meaningful progress in those areas, we won't have wasted our time.  

          "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

          by lgmcp on Wed Jun 17, 2009 at 11:41:42 AM PDT

          [ Parent ]

          •  Agree, partially. (0+ / 0-)

            I agree we have better luck pushing other issues legislatively.  The point here is that Obama's administration does not have to defend a law it feels is unconstitutional, let alone defend the law the vile and hateful arguments.  It implies one of two things, either: (1) Obama is placing politics above his constitutional values and the rights of a minority group, or (2) Obama trule believes in Section 3 of DOMA.  

            •  I'd say it's primarily #1. (0+ / 0-)

              I insist on believing that he knows, deep down, that true justice is on the side of full and immediate marriage equality.  

              But he probably rationalizes his equivocation by representing to himself that he will achieve incremental improvements for us precisely by not squandering resources on the unattainable big enchilada.

              "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

              by lgmcp on Wed Jun 17, 2009 at 11:55:56 AM PDT

              [ Parent ]

              •  I think your right... (1+ / 0-)
                Recommended by:
                lgmcp

                ... but I don't think many resources are squandered by having DOJ, at the very least, not take a position on the constitutionality of the law.  You will rile up the right wing, but surely defending liberty is worth holding back the right of the right wing.  This could be a golden moment for Obama or Holder to give a major civil rights speech explaining that the administration believes that this is a State's rights issue and the fed government should respect the decisions of the various states.  That is not even out of the mainstream.

                •  From your keyboard (0+ / 0-)

                  to Obama's blackberry.  As we will no doubt have occasion to repeat many times, in many contexts.

                  "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

                  by lgmcp on Wed Jun 17, 2009 at 12:01:59 PM PDT

                  [ Parent ]

  •  Now this seems like a decent case (6+ / 0-)

    I need to read the brief to be sure, but the article did mention that an actual harm had occurred, so the argument about standing shouldn't apply.  The DOJ will have to explain how the federal government can respect MA's decision to allow gay couples to marry but not confer the benefits that marriage implies.  I'm also glad that this suit was brought in New England.

    •  Gerry Studd's Spouse (0+ / 0-)

      The only spouse of a Congressperson in the history of the US to be denied any survivor benefits

      Dean Hara, the surviving spouse of late Congressman Gerry Studds, said "Gerry and I spent 16 wonderful years together and I miss him. The federal government's denial to me of Gerry's pension and health insurance added insult to injury at the worst time of my life. These systems are set up to help married people with the sudden loss of their partner, but instead of helping me, it hurt me."

      http://yubanet.com/...

      Meet the New Boss - same as the Old Boss - the Who

      by tiponeill on Wed Jun 17, 2009 at 11:41:48 AM PDT

      [ Parent ]

  •  As a constitutional scholar... (4+ / 0-)
    Recommended by:
    cdolan, oldjohnbrown, fou, Dems 2008

    ...Mr. Obama is undoubtedly well aware that the same disgusting homophobia that motivated DOMA is the underpinning of the entirety of constitutional gay rights jurisprudence (and/or lack there of).  And every time his administration defends the constiutionality of DOMA, in reality, Obama is advocating for the expanding the reach of the homophobia that pervades the relevant constitutional jurisprudence (by, for example, arguing that what little protection we have in Romer and Lawrence should be minimized to the facts of those cases and by advocating for new constitutional rulings regarding gay marriage rights).

    Whether or not Obama has a duty to defend the constitutionality of DOMA is besides the point.  Just understand what defending the constitutionality of DOMA really means.  It means actively seeking to ensure that the United States Constitution be interpreted as to allow discrimination against gay people.

    You all discuss above whether sexual orientation discrimination should get rational basis review or heightened scrutiny.  To the extent it gets rational basis review, my question is WHY?  Is there some sort of neutral, overarching constitutional reason sexual orientation does not get heightened scrutiny?  Or is it because a bunch of homophobic judges didn't want to grant such rights to gay people?  You know, the same ones who saddled us with Bowers v. Hardwick for a couple of decades.

    In the decades after Plessy, the president might have had to defend the constitutionality of what we would consider to be abhorrent racial discrimination.  That might have even required arguing the expansion of the precedent that existed.  Does anyone doubt that precedent was racist?  And does anyone think there may have been something the least bit distasteful about seeking the expansion of such principles.

    I guess having to advocate for the constitutional subjugation of gay people twice in a month is not sickening enough to Obama to say to hell with political expediency and get rid of DOMA.

  •  Here's The Problem: He Doesn't Feel (1+ / 0-)
    Recommended by:
    Clarknt67

    ...it's unconstitutional.  He feels it's bad law.  That's why he said he wants to repeal it vs. overturn it in court.

    Personally I'd just as soon not find out if it's constitutional or not.  Any attempt by the Justice Department to pussy foot on it could result in a suit by some conservative state paranoid that the government is ignoring the law.  If it ends up in the SCOTUS, and they rule it IS constitutional, then it ends up being that much harder to get rid of.

    Senator Inhofe? If you're still wondering? He's on my side.

    by TooFolkGR on Wed Jun 17, 2009 at 01:23:58 PM PDT

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