Obama Administration's DOMA Defense Unacceptable

Paul Hogarth writes:

"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."

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