Oh my: Obama’s DOJ to defend Defense of Marriage Act in court

posted at 8:27 pm on June 12, 2009 by Allahpundit

DOMA is the federal statute that says state X, which prohibits gay marriage, can’t be forced to recognize a gay marriage performed in state Y. As Tapper reminds us, candidate Obama opposed it in 2007. Two years later, Change has come to America. Question: Why does the president hate gay people?

Justice spokeswoman Tracy Schmaler said that President Obama “has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT (lesbian, gay, bisexual, transgender) couples from being granted equal rights and benefits,” she said. “However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”…

The Obama administration cited Catalano v. Catalano (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage), and re Mortenson’s Estate, (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

“Holy cow,” wrote [Americablog's John] Aravosis. “Obama invoked incest and people marrying children.”

Consider this another one of those highly nuanced, “pragmatic” reversals that the media — sans Tapper, natch — will helpfully overlook. “But wait,” you say, “isn’t the president duty bound to enforce a federal statute until Congress gets around to repealing it?” Why, er, no. Back in 2000, a little-known law passed in 1968 that purported to override the Warren Court’s “Miranda warnings” was challenged before the Supreme Court. Clinton’s DOJ actually sided with the criminal in arguing that the Miranda case was based on the Fifth Amendment and therefore the statute was unconstitutional; the Supremes had to invite a law professor unconnected to the case to defend the statute at oral arguments. (The DOJ/criminal dynamic duo won.) The charitable view of this is that The One’s thinking strategically, knowing there’d be a backlash against gay marriage if states that prohibit it were suddenly forced to recognize gay unions performed in, say, Iowa. He’s only looking out for the best interests of gays, you see. The uncharitable view is that he’s worried that the backlash would cripple his reelection chances, no matter how much it might please his gay constituents, and therefore he’s better off defending DOMA. You don’t think our Barry would be that cynical, do you?

I have no grand finale to this post, so let’s wind down with Carrie Prejean rocking the Farrah Fawcett hair.


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It should be left up to the states to decide, preferably by ballot.

On second thought, I was just thinking about how the actual marriage propositions in California have gone down.

Dr. ZhivBlago on June 13, 2009 at 12:46 AM

Question: Why does the president hate gay people?

Because Frank Marshall Davis made Obama his catamite.

daryl_herbert on June 13, 2009 at 2:13 AM

You know, I can almost understnad some of the Kool-Aid drinkers.

During the election I kind of thought Obama was going to turn out the way he has about control, foreign policy and priavte enterprise, but I believed him on the social issues.

I figured that Bill Clinton had strung the gays out for eight years and then splapped then around on occassion, that they was no way they would going to show up at the
polls for another poltician promising them equality.

I also thought Obama was niave enough to just walk into the Oval Office and within minutes make things happen on Don’t Ask Don’t Tell, DOMA, and the more subtle discrimination that goes on in some federal agencies. I thought Obama would wave his hand the the gays would inherit the earth and all would be well with the voters and the generals.

But no. The only high profile cabinet appoint has been Napolitano and she’s not even out. The military claims that there has been no discussion of DADT. Now it turns out that there are laws that Obama’s DOJ wants to enforce (rather than make up as they go along).

Obama didn’t run head long into reckless social policy (except on abortion) and I am a wee bit stunned.

The polling numbers on social issues really must scare the crap out of this administration.

myrenovations on June 13, 2009 at 8:31 AM

I will give anyone odds that the DOJ will lose this case.

This is politics pure and simple. He will “defend” DOMA by putting in the minimum effort. Maybe after that 31 year old is done destroying GM, he’ll be lead counsel for this case. In 2012 he’ll shrug, say I tried, but the gays beat me up on it, what can I do…all the while winking and nudging to GLAAD and Co.

Do not for a minute believe anything this man tells you.

angryed on June 13, 2009 at 9:06 AM

myrenovations on June 13, 2009 at 8:31 AM

This has to be based on polling and voting blocks. If what former mayor of D.C., Mr. Barry(?) said was correct and you consider the Prop 8 vote in California, it would appear that a large number of the Black and Hispanic population are not ready to embrace what the Gays consider their right. Those are not voters he can walk away from given the relatively small percentage of Gay voters and their supporters. Guess who’s under the bus. I am sure he is hoping for a change of heart over the next three and half years that he will be glad to embrace, telling the Gays he was with them every step of the way.

Cindy Munford on June 13, 2009 at 9:27 AM

don’t these DOJ lawyers take an oath when hired to defend the constitution. surely, eric holder took that oath.

whatever you think of DOMA, it is their duty to defend it. period.

kelley in virginia on June 13, 2009 at 9:28 AM

The uncharitable view is that he’s worried that the backlash would cripple his reelection chances, no matter how much it might please his gay constituents, and therefore he’s better off defending DOMA.

I think there are bigger, and much more expensive issues, that will tank his bid for re-election, than this. All he does is campaign, and pander. It’s getting old, and pathetic.

capejasmine on June 13, 2009 at 10:35 AM

Actually, I agree with those here who think that this is an elaborate game on Obama’s part. The Obama DOJ will take the case to the Supreme Court, not advocate terribly effectively, and will lose, at least 5-4 and possibly 7-2. DOMA is basically indefensible under the Full Faith and Credit clause of the Constitution, which may (or may not) turn Justices Roberts and Scalia. It’s possible that the cases mentioned by the DOJ are the best precedents available, but it’s equally possible that they were chosen in order to put Justice Kennedy in the position of having to equate homosexuality with incest and underage marriage, which I can promise you that he won’t do. The same-sex marriage advocates won’t complain too much as long as they win; to the extent that they do, Obama will simply deflect the criticism by claiming that he was bound by the Constitution to defend the law, and I think that we all know the level of media skepticism that this claim will undergo. Besides which, the critics have three years in which to forget . . . This is basically the endgame, similar to the way that no-fault divorce played out in the late ’60′s/early ’70′s. The only solution to the problem is, and always has been, a Constitutional amendment that creates an exception to the Full Faith and Credit clause in this instance, which in the current political climate is unlikely.

loneloc on June 13, 2009 at 10:42 AM

loneloc on June 13, 2009 at 10:42 AM

It might work but DOJ won’t be the only one representing that side of the argument and not everyone will be trying to lose.

Cindy Munford on June 13, 2009 at 11:38 AM

Interesting that one would mention Iowa as a place where a forced recognition of same sex marriage would cause a backlash. I fail to see how. In 2008 Iowa, like much of the upper mid west voted for Obama and in most cases, the other Democratic Party candidates. So in effect, Iowa, like the other Democratic leaning blue states, picked a Democratic Party platform. Since the Democratic Party never saw a deviant act, actor, or comic they didn’t support, then logically they would be “progressive” enough that when it comes to morals, anything goes.

Jeff from WI on June 13, 2009 at 1:29 PM

Cindy Munford on June 13, 2009 at 11:38 AM

Granted. However, the Administration’s case will be the one most highly visible, and given that Justice Kennedy will most likely once more be the “swing vote,” placing him in a position where he will have to at least concur with an opinion placing homosexual relationships on the same level as incestuous or age-inappropriate relationships is a losing strategy (which in the Administration’s view, I believe, makes it a winning strategy). Unfortunately, absent a Constitutional amendment, the defenders of traditional marriage are destined to play the role of Sisyphus in the courts, due in small part to the Constitution itself (viz. the Full Faith and Credit clause), but mostly to the oversized role of the judiciary and the culture of that judiciary.

loneloc on June 13, 2009 at 1:41 PM

Unfortunately, as terrible as recognizing a ‘union’ of perverts is to our nation, trying to do an end-run around the Constitution is simply unacceptable. This issue is simply going to have to be decided by individual states.

Dark-Star on June 13, 2009 at 11:17 PM

Unfortunately, as terrible as recognizing a ‘union’ of perverts is to our nation, trying to do an end-run around the Constitution is simply unacceptable. This issue is simply going to have to be decided by individual states.

Dark-Star on June 13, 2009 at 11:17 PM

As a 40-year-old, it is (or, at least, references to it are) within my memory that married couples would “run to Vegas” for divorces because Nevada was then the only state that provided “no-fault” divorces. The state in which the marriage was performed had no recourse regarding the marriage no matter whether or not the divorce would have been attainable there, due to the Full Faith and Credit clause of the Constitution. In a similar vein, this issue cannot “be decided by individual states” without some sort of “end-run around the Constitution.” The only “end-run” that will allow this on an enduring basis would be a Constitutional amendment; I remember actually rolling my eyes during the general enthusiasm when DOMA passed, in anticipation of the moment when it ran afoul of the Constitution itself. Those who care about this issue had best prepare for such a push, because nothing less will suffice, and the odds of getting an amendment are frankly quite low.

loneloc on June 14, 2009 at 12:23 AM

I just read Tom Suozzi’s piece linked on the Hot Air home page, and the end game concerning religious officiants of marriage became clear to me as I was reading his disingenuous reassurances. Simply put: Priests, ministers, rabbis, etc., perform religious marriages, but simultaneously perform civil marriages, as attested to by the “By the power vested in me by the State of . . .” verbiage at the end, and by the statutes of the various states as to whom can perform a marriage. This is already a modest breach of the wall of separation between church and state; it will not be difficult to make the case that since they are performing a quasi-governmental function, they are subject in the case of marriage to state and federal anti-discrimination laws (there is no federal anti-discrimination implication for homosexuality yet, but give them time; in the meantime, several states do implicate homosexuality in their own legislation). Suozzi’s disingenuousness lies in trying to preemptively dismiss this concern by talking about the “strong protections” provided by the legislation to religious celebrants of marriages . . . but any conservative paying attention has seen this play before: The legislators are shocked — shocked! — as the courts overturn the “strong protections” on a civil-rights basis. Before long, if a bride and groom in the Catholic, Pentecostal — Muslim! — faiths want to be married, they’ll be heading from the altar straight to the courthouse for their civil ceremony, since no traditional clergyman will want to have power vested in them by the State under these circumstances. As much as Doug Kmiec’s rank hypocrisy on the Obama presidency makes me queasy — and I’m an agnostic! — I’ve long thought that absent a Constitutional amendment, the push to reduce the institution of marriage in the civil sphere from a privileged place to the realm of contract law would ultimately come in large part from the clergy itself, and the realization outlined above does nothing to convince me otherwise.

loneloc on June 14, 2009 at 1:47 AM

The National MCMC also demands rights to marry. Will these MCMC member also be denied their rights. How long must this go on.

MCMC: Midget/Chicken Marriage Coalition.

Jeff from WI on June 14, 2009 at 8:23 AM

heh heh. How do you gay folks out there like your hereo now?

See how important your vote is folks? See how the world is right now? See how our country is right now?

johnnyU on June 14, 2009 at 9:36 AM

Maybe it is because he is not in favor of showing his actual disgust for the lifestyle. However, ‘coldwarrior’ and ‘kahall’ have the answer hidden in their posts.

Kahall – he’s working hard on it; or he’s hard working on it? Giving us a bit more insight into his pride and prejudice.

or

Coldwarrior, hit it right on the head. Taxing poles will be profitable but will not eliminate erotic performances unless he wants to tax your lap. The only loopholes in a lap tax is to stand up or lay down at all times.

MSGTAS on June 14, 2009 at 10:53 AM

Gay issue as it affects Socialized Medicine.

As the population will be taxed, or regulated for lifestyle options, as the gay lifestyle costs taxpayer money to treat their sexually transmitted diseases, will they be reigned in or taxed?

nondhimmie on June 14, 2009 at 12:09 PM

Gay issue as it affects Socialized Medicine.

As the population will be taxed, or regulated for lifestyle options, as the gay lifestyle costs taxpayer money to treat their sexually transmitted diseases, will they be reined in or taxed?

nondhimmie on June 14, 2009 at 12:10 PM

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