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Obama Justice Department Defends Defense Of Marriage Act – That Candidate Obama Opposed
June 12, 2009 7:00 PM
President Obama’s Justice Department filed legal papers late Thursday to dismiss the first same sex marriage case filed in federal court.
The Justice Department defended the Defense Of Marriage Act, or DOMA, which as a candidate then-Sen. Obama opposed, saying that the plaintiffs Arthur Smelt and Christopher Hammer are seeking a ruling on "whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by states that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no.”
"The plaintiffs in this case, a same-sex couple married under the laws of California, make a number of claims against DOMA,” the Obama Justice Department lawyers argued. “Specifically, they allege that Section 2 violates the Full Faith and Credit Clause and their ‘right to travel,’ that both sections of DOMA violate the Due Process Clause of the Fifth Amendment (including its equal protection component) and their ‘right to privacy, and that Section 3 violates their ‘right of free speech’ and their ‘rights’ under the Ninth Amendment. Plaintiffs initially filed this action in State court, and the defendant United States removed it to this Court. Rather than reaching the merits of these claims, the Court should dismiss this action for lack of subject matter jurisdiction."
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."
But many arguments being made by the Obama administration are meeting with some outrage by supporters of same sex marriage – and not just because of the administration’s arguments in the brief in support of a law the president said he opposed while seeking gay and lesbian votes.
Writing at Americablog John Aravosis cited a passage saying that “the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State's policy…And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum.”
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 Aravosis. “Obama invoked incest and people marrying children.”
Appearing at a presidential candidates forum in August 2007 sponsored by the gay and lesbian rights group the Human Rights Campaign, then-Sen. Obama said it “is my strong belief that the government has to treat all citizens equally. I come from that, in part, out of personal experience. When you're a black guy named Barack Obama, you know what it's like to be on the outside. And so my concern is continually to make sure that the rights that are conferred by the state are equal for all people. That's why I opposed DOMA in 2006 when I ran for the United States Senate.”
-jpt
June 12, 2009 | Permalink | Share | User Comments (43)
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The DOMA law codifies prejudice, plan and simple. The law defends the government's right to behave prejudice. The legislation doesn't have the backbone to pass gay marriages and Obama knows that. DOMA is a contentious issue and Obama does not have the time to fight the good fight. He has banks to take over and wars to fight. Gay people are treated unfairly over and over again by the government at all levels and that law says it's okay to do so.
Posted by: Roseanne Palmer | Aug 19, 2009 12:02:41 PM
Get this straight: The legality of unions between persons of the same sex is NOT a civil rights issue. Homosexual behaviors are deviate behaviors and these unions, satifiying as they may be to the partners, do nothing to advance the welfare of society. They damage the moral fabric (if we have any left, that is) of the commonweal.
Posted by: ;Marjorie Smith | Jul 6, 2009 6:09:25 AM
He is for you to get your vote. Then he is against you once he has it. Give him time he will be for you again and against you again. Waffle.
Posted by: d | Jun 19, 2009 11:14:31 PM
Those cases are all state level, this is a federal case. Why interfere with this case at such an early date?
Posted by: Tom Anderson | Jun 19, 2009 12:23:47 PM
Fire the Justice Department officials who gave this erronous quasi-legal mumbo-jumbo.
It's time to hold accountable Justice Department legal advisors.
Posted by: Tom Anderson | Jun 19, 2009 12:18:19 PM
"Sen. Obama said it “is my strong belief that the government has to treat all citizens equally. I come from that, in part, out of personal experience. When you're a black guy named Barack Obama, you know what it's like to be on the outside. "
++++++++++++++++++++++++++++++++++++++
Oh please, Mr. President. This is not about you and your "struggles" as a black man named Barack Obama. You were privledged to go to elite schools your entire life. By the time you were 45, you wrote 2 autobiographies earning you millions of dollars. By the time you were 47, you held the most powerful position in the world. You don't know anything about being on the "outside" unless, of course you're talking about being the beneficiary of what this country has to offer more than most of it's citizenry.
Posted by: jennifert7 | Jun 18, 2009 4:21:11 PM
Jesus removed my RELEVANT link again? People, Google "Fearing Redefinition: Gay Marriage" and you'll see what I've been TRYING to tell you guys about. You'll want the one on the site called "Common Sense"... It's worth reading, even though it's a little long.
But seriously Obama has accomplished quite a lot in five months. He's effectively stepped down from most of his campaign promises, if not all. We should see if that's a record.
Posted by: Chris | Jun 17, 2009 4:56:47 AM
So I've heard the excuse that Obama did not write the memo himself. Well he is in charge, and the inflammatory language in the legal brief should have been approved by Obama. If it was not run by the boss, then our president is not in control of his subordinates. And that is perhaps even worse than if Obama wrote the memo himself.
Posted by: Kyle | Jun 17, 2009 1:33:03 AM
I searched for this info tonight because I saw something on the Rachel Maddow show about it.
I was appalled, as are many of you, that my candidate would turn his back on citizens of this country.
I'm glad I looked it up because a couple of things seem more clear:
1. President Obama did not write this brief - he has other jobs to do than write DOJ briefs. There are people in the employ of the DOJ who write them.
2. While I certainly understand and support the reaction to some of the specific cases that are cited, the message really isn't that Gay and Lesbian marriages are like pedophilia or incest; the brief is saying that these are other instances where states were not required to uphold marriages valid in all states because there was no Federal imperative to do so. It's a very slight difference, and maybe one not very noteworthy, but it's more about legalese than about defaming citizens.
While I may have mixed feelings about any 16 year old woman being married, I think the brief is 'simply' saying the DOMA is consistent with a particular ruling saying that because it was legal for a 16 year old to marry in Indiana, the state of New Jersey didn't have to recognize it.
I could be wrong, but it seems like the brief is saying there are precedents for the act - namely these three situations where perfectly legal marriages in one state (or country) were not forced to be recognized by another state.
I still don't think this is OK logic, because I think it is a Civil Rights issue. But legal rulings are built upon case law and successful Constitutional Law lawyers are those who have a wonderful memory, unique search engine talents and/or very adept law clerks to find precedents.
Let's continue to write President Obama, and our local Senators and Congresspeople and tell them that we won't tolerate making at least 10% of our country second class citizens. Let's push for marriage to be religious, and churches allowed to decide who they will marry; and domestic partnerships whether same sexual orientation or not, equal under the eyes of the law we all support through our citizenship.
Posted by: Begreen | Jun 16, 2009 11:08:07 PM
Dude who took off my link? It was valid, and shorter than copy/pasting the whole thing.
[URL removed]
That article discusses exactly why anyone who supports DOMA is wrong. The author words it well, I think, and she obviously has done her research.
Posted by: Chris | Jun 16, 2009 8:14:11 PM
Perhaps this is simply a bid to not have these issues decided in the courts but rather in the legislature.
That is, to untwist all the damage the culture wars have done to the structure of our political institutions. If, for example, by ensuring that this challenge does not succeed, and then seeking to get legislation introduced in congress overturning DOMA then Obama can be seen as attempting to both support his LGBT supporters and upholding the integrity of the system by pursuing such support via the proper channels.
Posted by: MWT | Jun 15, 2009 6:43:23 PM
D Legin,
Thank you for the correction.
Posted by: tanarg | Jun 15, 2009 3:56:02 PM
Why not just vote Libertarian in 2012? Show both the Democrats and the Republicans that we aren't liking at ALL where both parties are going.
Posted by: libertarian | Jun 15, 2009 1:28:35 PM
Have you noticed how little about this you can find online? One or two stories.
For me it wasn't really that DOJ filed the brief, it was the strong wording of the brief.
Say what you will about McCain, but I really do not believe his administration would have filed such a thing. Not with that harsh tone.
GLBT are to remain second, no third, no steerage citizens, and don't you forget it. That's Obama's message to gays and lesbians.
Posted by: darogr | Jun 15, 2009 8:46:22 AM
The responsibility to enforce the law is entirely different from defending any particular law from legal challenge. There is just no legal imperative on the part of the Obama administration to defend DOMA if it chooses not to. Other presidents have supported challenges to existing laws, one of the most significant being in the Truman administration where a 19th century law, which provided the basis for the racist "separate but equal" principle, was successfully attacked in the Brown v Board of Education case (early 1950s). The Truman administration courageously filed a brief in that case in support of the plaintiffs.
Posted by: D Legin | Jun 15, 2009 8:38:22 AM
The job of the president is to carry out the law. Obama has no choice unless he wants to be impeached.
I repeat: His job is to ENFORCE the law. PERIOD. That is his JOB -- nothing else.
If he starts not defending the United States in court when its laws are challenged, he will be IMPEACHED.
I never cease to be amazed at how stupid his supporters are. They don't know the basic concepts of our system of government.
It is really hard to believe that they are this stupid.
Posted by: tanarg | Jun 15, 2009 2:51:55 AM
Like most of the politicians, Barack Hussein Obama will say what ever you want to hear to get you on his side. That doesn't mean he will follow through with it. The Republican and Democrat voters should not fall for the BS these politicians spread when they are running for office. When a candidate says "I voted such and such way." Google their voting record. It is as simple as that to get the truth.
Posted by: d | Jun 13, 2009 10:37:57 PM
I voted for Nader/Gonzalez even though I new they didn't have a chance in hell. I will go third party in 2012 I hope other will do the same. Neither the Republicans and the Democrats deserve our votes.
Posted by: Ken | Jun 13, 2009 9:54:42 PM
I think, the gays should have the right to get married, just like they had in biblical times, in Sodoma and Gomora.
Posted by: James | Jun 13, 2009 7:41:03 PM
Least any of us forget, Obama has been in office less than 6 months. Give him a chance to do it CORRECTLY. The simplest solution is to change the word marriage to civil the licenses.
Posted by: Dex | Jun 13, 2009 5:47:03 PM
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