This week federal Judge Stephen Reinhardt of the Ninth Circuit ruled that the Defense of Marriage Act forbidding marriage equality is unconstitutional - a violation of the equal protection component of the due process guarantee of the Fifth Amendment of the U.S. Constitution.
A week earlier, 10 year old Arkansas student Will Phillips reached a similar conclusion, on the basis of obvious fairness. The equal rights issue made him unwilling to recite the Pledge of Allegiance line "liberty and justice for all", and that got him in trouble with his teacher, but he is standing up for his rights.
I'm here to explain why Judge Reinhardt is wrong, why Will Phillips is wrong, and why denying those families equal rights to Social Security and survivor benefits among 1138 federal marriage rights is perfectly in keeping with the US Constitution. Please read on below the fold, and take the poll.
As you know, I want the Defense of Marriage Act to be repealed. I fully support the goals and rights of the many equal rights advocates and LGBT Americans who elected me. But I've always thought DOMA was constitutional. And I'm a constitutional lawyer.
Darn - really sorry about this! - I'm being called away to an extraordinarily important meeting - three meetings actually.
I don't have time for this today. But hey - I have so many strong, smart supporters at the Daily Kos, I'm going to ask you one simple favor: explain in Comments below why Judge Reinhardt is wrong and the Obama Justice Department is right. Just give the basic argument as you understand it. Ideally in terms bright young Will Phillips can understand. Feel free to refer to arguments and briefs my Justice Department has made. You can probably find better references than this.
And from Judge Reinhardt we have:
I should note that marriage is a status traditionally established and regulated by state law. It is also a fundamental right. Loving v. Virginia, 388 U.S. 1, 12 (1967). Whether a state may deny such status to same-sex couples is beyond the scope of this decision. Here, I need determine only whether same-sex spouses who have been legally married under the laws of the relevant state may, because of the sex or sexual orientation of the couple, be denied federal benefits that are afforded to other spouses legally married under such laws.
...
In sum, to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee's and his or her spouse's sex or sexual orientation, DOMA, as applied, contravenes the Fifth Amendment to the United States Constitution and is therefore unconstitutional.
I'm trusting you. Don't be silent amid relentlessly negative left and right wing trolls who love to criticize me without cause. Don't let them think you're acolytes following me blindly! Don't leave young Will thinking this President isn't committed to fairness - or isn't as courageous as a 5th grader. Show the world I'm standing up to my oath to protect the Constitution.
PS: Please don't embarrass me with arguments that my Justice Department is required to pretend every existing federal law is fair or should be enforced. We know from my widely applauded changes to marijuana enforcement last month, that would be a lie. Don't hide in bull - just honestly explain why I'm right!
And don't forget to take the poll.
Gotta run. Thanks!
UPDATE
While no one was able to find a link with me personally explaining why DOMA is constitutional - and no one here argued that it is (although 1 in 7 Kossacks anonymously claimed they think it is in the poll - and some folks swore emphatically that I believe the opposite): my Justice Department's arguments for dismissal of a federal equal rights case this year say everything I couldn't say out loud.
We invoke incest and people marrying children.
We argue that the incest and child rape cases therefore make DOMA constitutional.
DOMA is good because it saves the feds money
DOMA is constitutional
"DOMA Is Consistent with Equal Protection and Due Process Principles."
Gays have no constitutional right to marriage, or recognition of their marriages by other states
DOMA deserves praise as "cautiously limited"
Gays don't deserve same scrutiny in court that other minorities get
DOMA is a good thing
DOMA is rational and constitutional
It's reasonable and rational for Congress to defend "traditional" marriage - in fact, DOMA was actual a very "neutral" law, rather than anti-gay
Please don't confuse the gays with the blacks, and other "real" marriages
DOMA infringes on nobody's rights
DOMA doesn't discriminate against gays - all they have to do to get the benefits is get married... to someone of the opposite sex!
Regarding the idea that I have an obligation to defend existing law - that's actually a lie, but I do appreciate it.
Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional. ... Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was "abhorrent." Folks, Obama's lawyers are even trying to diminish the impact of Roemer and Lawrence, our only two big Supreme Court victories. Obama is quite literally destroying our civil rights gains with this brief.
Anyway, thanks for looking out for me.
I knew you'd understand.