Subscribe to Breaking NewsRuby-Sachs: New DOMA Brief Has Kind Words But Creates Big Harm
The Obama administration has filed a follow-up brief in Smelt – the case out in California that caused all the hubbub this past June when a controversially worded brief was filed by the Department of Justice.
This time, Obama has some important statements to appease the gay community: “With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”
Or: “Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman…the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.”
But then the brief does something really dangerous. It argues that DOMA should be upheld because the government has a rational interest in staying out of the debate for convenience sake. It states:
“Courts have held that challenges to DOMA are subject to rational basis review. Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. …Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.”
This sets a dangerous precedent. Traditionally, even the weakest kind of constitutional review, rational basis – has not permitted administrative convenience to justify discrimination. If it did, then every law, no matter how offensive, would be upheld because change just costs too much money and creates too many problems. Just think of all the backlog giving women the vote must have created.
As it stands now, this prohibition against using administrative convenience as a reason to continue discrimination against LGBT people is about all the constitutional protection gay Americans have.
If the Obama administration’s argument in this new bried is accepted, we might lose even that paltry prize.
Obama is the head of the U.S. government. DOMA is a statute passed by and currently held as valid in the eyes of the U.S. government.
Any administration is legally bound to defend the laws of the U.S. government, even if most or all of the individuals in that administration disagree with the law.
If I’m not mistaken, had any state declared abortion or not being Christian illegal under Bushes term, Bush and his DOJ would have had to fight that state in court.
Even though Bush and the GOP would love to see a state ban abortion and non-Christianity, that state would be going against federal statutes on those issues and even a GOP DOJ would be obliged to present an argument against that state.
A pathetically weak argument in defense of DOMA is the best any gay friendly administration can do. From what I’ve read, this is just that, so cheer up!
This is the statement Obama made after his DOJ defended the bigoted DOMA as consitutional in court: “my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.” Well, the EXISTING LAW is DOMA which specifically outlaws extending ANY rights or benefits of marriage to LGBT couples. That makes Obama a two faced cowardly liar who wants to have his cake and eat it too. If you think we should continue to sit around and wait for him to do something for us you’re as stupid as he thinks we are. We must demand our rights, right now. Obama is just another obstruction. He is not our ally.
This is one of the most poorly written things I’ve ever read on this site, and that is saying a lot. You have run-on sentences, poor grammar and punctuation, and what on Earth is “bried” (last sentence of column)? Sorry, but I can’t even figure out what you’re getting at in this column other than the standard indignation at the Obama administration. (Because, really, what else is there to care about in this world than the way the Obama admin addresses GLBT people? Screw the economy, health-care, wars in foreign nations, torture allegations, climate change, and everything else that isn’t STRICTLY GAY!!) Please get an editor, Ms. Ruby-Sachs. Please.
We forget something important. The president alone cannot remove DOMA using an executive order. Its an act of congress to repeal DOMA.
I think Obama has done what he can to this point by publically calling it discrimatory act. He is getting public opinion on swaying voters to pressure Congress.
Unfortunatly this president has not enough political favors earned to push all of his promises through at once. With the economy and healthcare both on the table, its hard for anyone to pay attention to the other issues.
If anything, Obama would have a better chance during his 2nd term providing the economy improves by 2011 to get enough support to repeal DOMA in Congress. He may be gaining support in private beyond the media attention to earn that support of other polticians and with any political process it takes time.
This is not an issue of whether or not the President’s administration sees the issue of DOMA as a problem, I feel it’s a question of validity for the administration regarding gay rights.
Yes, President Obama was the best choice for our country… I try to convince myself of that a little more everyday (who knows how Hillary would have done), but our representatives are elected to represent us… they either do that or they don’t get re-elected. President Obama has a full plate in front of him, but I don’t feel guilty by pushing my serving of civil rights on his plate for him to take a piece out of, do you?
The LGBT was promised a seat at the talbe of issues by then candidate Obama while he was courting the LGBT community, and now it’s time for us to call in our favors and create the “change” we all believed in.
http://www.citizenzero.us
@Facebook User–if you wanted to come off as a little more of the adolescent dramatist, you could at least post a pic of yourself with the anarchy sign clearly visible on your backpack. If you want to be taken seriously (I’m assuming that’s at least a secondary but unspoken goal), then spare the petulance. Be smart. Be angry. Be aware. But don’t be childish. (I’m tempted to say something like, “Life gets easier once you get your SAT scores and acceptance letters,” but I’ll skip that sarcasm for now.)
The United States hates us. So I hate it back. Thanks, USA, for screwing me over. I can’t wait to get the hell out of here.
@michaelandfred
I know “our” president hasn’t done alot of what he’s promised, actually he has done nothing, he’s promised so far. I’m not saying just because “I” voted him into office, that he is GOD. Nor should anyone else who’ve voted for him. I also know that he’s not 100% right about everything he’s said or done. I’m not perfect, nor is anyone else, and definetly not the president. I’ve been on this website for a couple of years now, and I couldn’t stand GW. Yes, I voted for Barack Obama, and I haven’t agreed with everything that has been going on since he was elected. Yes, I’m pissed that he hasn’t moved quickly through with his promises. I believe he should have stopped kicking the GLBT community out of the military as one of his first campaign promises. I know that our economy and healthcare was given to him from the previous devil in office. Mostly what I pick off of this website are people who’ve said “I should’ve voted for McCain/Palin” and “why did we vote for Obama?” He’s been in office for almost 8 months, he should’ve put his authority on passing the health care bill. If I didn’t trust him when I voted for him, then I wouldn’t have voted him into office. All of the bloggers on here don’t know what it is like to be President of the United States, including you and me. All I have read since January is people on this site dumping on him. Don’t you think that when he says that the GLBT community is discriminated against, and should have all the rights as the Constituition states, that that might put a smile on someone’s face that is reading the article? It made me smile, but I get on here and everybody is still slinging shit his way. I know that he can say alot and isn’t doing anything, but just blowing hot air. I also think, until it actually happens is when I’ll believe it. It just would be nice, to see someone on here say something good about him, is he a good person? father? friend? or president? I know that this is politics, and they’re alot of shady people in the government. There will always be shady people in the government, along with liars, cheats, thieves, and evil doers for millions of years to come. I have to put faith in the person I voted for, if not, then who do I put faith in? The GLBT community? You can talk a talk, but if you don’t walk the walk, who can you trust? He’s been in office for 7.5 months, if he doesn’t make any change in our government by the end of the year, then I’ll know I made a mistake in voting him into office. We shouldn’t have to wait this long for at least one promise to be made. The Neo Nazi people that shout our health care down in our Democratic conventions, are assholes, and like you said as we are the people, we need to get more involved into fighting what the right wingers keep lying about. Stand up against those people, lets shout over them or not let them enter into our conventions. It’s got to be easier done than said. PERIOD
The Supreme Court has repeatedly rejected administrative convenience as a valid rational basis for justifying a law (and it’s not even perfectly clear that this is what the DOJ is arguing). So, which is more likely: (1) this isn’t actually an administrative convenience argument; (2)
the DOJ is giving a bare-bones defense by using an argument that they expect to fail in order to give us our best shot at DOMA being found unconstitutional; or (3) the DOJ is using DOMA (of all things) as a vehicle to engineer a major shift in constitutional law (or otherwise, that everyone in the DOJ is completely unaware of this universally taught first-year law school lesson).
I’m going to venture a guess that they are not trying to engineer a legal disaster that would still require that a court actually reverse countless decades of precedent.
Have a little faith and give the Administration a break. They are doing their best. Not everything that looks like a disaster actually is one.
Was that not the goverments aurgument for slavery,segragation & the marriage band for interracial couples.Its up to each state to figure it out? Its cowardly & so played out.
@yodafriend. What bothers me is this idea now in politics that we have to agree with every single thing “our” president does. He’s the president not the messiah, not a god or a king and definitely not 100% right all the time. Stop campaigning, we won, now it’s our job in a democracy to make sure the person/people we elected follow through on the promises they made. Remember how we all screamed and stamped our feet because we couldn’t believe all those crazy right wingers who refused to believe Bush ever did anything wrong? Remember how crazy that seemed just because he was a Republican? That’s just how you sound now just because it’s YOUR candidate that won. Is THAT what you want us to be, just a shadow of the right wing? It doesn’t matter what they say and do as long as it’s OUR person doing it? Be an adult. Friends help their friends by pointing out their mistakes, not by agreeing with them even when we know it’s wrong. Stop the Us vs. THEM mentality. He’s a man and he can and will make mistakes…. and he represents the “people”. That’s us, and so far he’s not doing a very good job of it when it comes to the LGBT community. It’s our obligation as Americans, in a democracy to point out when our elected leaders are doing the wrong thing.
Of course Obama, and any US President, can pick and choose which laws to defend in court, and how vigorously to defend them. There are three co-equal branches of government, not two. If Congress was intended to determine how to defend laws, the power to defend those laws would have been with Congress. Instead, the President has that power. Power only means something if you get to decide how and when to use it. Obama should realize that. Particularly in these times, it’s the height of government waste to defend a law that the President intends to see overturned.
Does anyone on this entire site, support President Obama?!? I just can’t get over that no matter what Obama does, that there’s always someone bitching and complaining and hating him. This kind of talk, makes me want to exclude coming to this site/365gay.com forever.
@Facebook User–and I guess it was nothing personal when Japanese-Americans were rounded up from Sacramento and the Willamette Valley for garden spots like Manzanar? This isn’t picking and choosing. You’re defending Obama’s indefensible position because you think that allowing that he could be wrong is a gesture of disloyalty. That mentality is all fine and good if Stalin is your President, and you can get a bullet to the head for not laughing at a joke. That’s not where we are, but when you and others here continue to defend Obama even when he missteps, you act as if acknowledging any misstep is somehow denigrating him. If you really had faith in his leadership, you’d be free to acknowledge a mistake.
There is no excuse for Obama’s intractible refusal to stop defending this law. No excuse. The only reason for defending the law is that he doesn’t want it voided. Prove me wrong.
The thing to realize about this brief is not what it looks like on face value. Obama makes a very good point that the Justice Department cannot pick and choose what laws to defend. If they utilized that sort of power then we would be far too close to a dictatorship. Such things should not be tolerated. However his argument is weak. For all the reasons you state here. Administrative Convenience is hardly a significant government interest. In fact, in stating that the government does not have “significant government interest” in much of the structure of this law they give the courts a great deal of leeway to overturn it. This brief meets the basic constitutional requirements of the Department of Justice, but in fact is not really a defense of DOMA at all.