Two weeks ago, the Gay and Lesbian Advocates and Defenders (GLAD – the group that brought you gay marriage in Massachusetts) served Obama’s administration with a lawsuit that challenges Section 3 of the Defense of Marriage Act. Their argument is simple: DOMA treats legally married same-sex couples differently from legally married heterosexual couples and in doing so, denies them access to federal tax deductions, social security benefits and other tangible economic gains.

Obama has the option, as has every president before him, to refuse to defend clearly unconstitutional laws. He has the opportunity today, to stand up for equal rights by refusing to argue DOMA’s constitutionality in court.

This would not only be the first concrete action supporting LGBT rights for President Obama, it would be entirely in line with his statements supporting the repeal of DOMA.

The AP reports that Equal Rep – a grassroots Massachusetts organization – is urging people to send President Obama a flip flop postcard. The cards ask Obama to not flip flop on DOMA and refuse to defend the statute in court.

Below is a legal memo I wrote with the founder of Equal Rep, Paul Sousa. It explains the right to not defend unconstitutional laws and supports the proposition that Section 3 of DOMA is clearly unconstitutional.

Read it.

Write to your Senator and Congressional Representative and demand that the Department of Justice refuse to argue for the continued discrimination against same-sex married couples.

    Legal Memo Regarding the President’s Duty to Refuse to Defend DOMA
    The President of the United States has an “undisputed right to… refuse to defend in court, statutes which he regards as unconstitutional.”(1) Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 ¶ 41 (3d Cir. 1986). This right is often exercised by directing the Department of Justice to challenge, rather than defend, an impugned statute.

    The Right to Refuse to Defend an Unconstitutional Statute

    The Justice Department has, historically, refused to defend statutes that are unconstitutional because they violate the rights of citizens(2) and statutes that are unconstitutional because they violate the separation of powers.(3) In 1946, the Justice Department argued against the constitutionality of a statute that directed the President to withhold compensation from three named employees. United States v. Lovett, 328 U.S. 303 (1946). In 1983, the Justice Department argued against the constitutionality of a legislative veto on citizenship applications. INS v. Chadha, 462 U.S. 919 (1983). In 1988, the Department of Justice challenged the constitutionality of the independent counsel statute. Morrison v. Olson, 487 U.S. 654 (1988).

    The Department of Justice may also notify Congress of a refusal to defend an impugned statute without appearing in court for either side. As recently as 2005, the Department of Justice notified congress that it would not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. ACLU et al., v. Norman Y. Mineta (civil action no. 04-0262).

    Although the current administration has no express policy regarding the defense of enacted statutes, now Attorney General Holder stated publicly that “the duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to.” Senate Confirmation Hearing of Eric Holder before the Senate, 111th Cong. (January 15, 2009) (statement of Eric Holder).

    Section 3 of the Defense of Marriage Act is Clearly Unconstitutional

    Section 3 of the Defense of Marriage Act (DOMA) DOMA, 1 U.S.C. § 7 states, “”In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ’spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

    Because of this interpretation guideline, same-sex couples legally married in their state are denied economic benefits granted to heterosexual couples legally married in the same state. These include spousal health insurance for state employees, federal income tax deductions for those “married filing jointly,” and the one-time lump-sum death benefit granted to a spouse under the Social Security program claim. Gill et al. v. OPM et al. v. U.S., No. 12-345 ¶ 6-8 (D. Mass. filed Mar. 3, 2009).

    The denial of these benefits to legally married couples has no rational basis. The denial of marriage-based benefits to same-sex couples has been found to violate constitutional equal protection guarantees by a number of State Supreme Courts. Kerrigan and Mock v. Connecticut Department of Public Health, 957 A.2d 407 (Conn.,2008.), In re Marriage Cases 43 Cal.4th 757 (2008), Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), Varnum v. Brien, WL 874044 (Iowa 2009).

    The challenge to DOMA 1 U.S.C. § 7 does not argue that same-sex marriage is guaranteed by the United States Constitution. It does not, in fact, address the question of same-sex marriage at all. Instead, DOMA 1 U.S.C. § 7 denies benefits to same-sex couples already legally married in their home state where the equality question has already been argued in front of the courts and settled.

    Conclusion
    The President reserves the right to refuse to defend an unconstitutional statute. Section 3 of the DOMA is clearly unconstitutional in that it denies married same-sex couples economic benefits granted to heterosexual married couples from the same state without providing a rational basis for this discrimination.

    We ask that President Obama and Attorney General Holder refuse to defend DOMA in the upcoming challenge filed in the State of Massachusetts, Gill et al. v. OPM et al. v. U.S.

    (1) This claim of right for the President to declare statutes unconstitutional and to declare his refusal to execute them, as distinguished from his undisputed right to veto, criticize, or even refuse to defend in court, statutes which he regards as unconstitutional, is dubious at best.
    Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 ¶ 41 (3d Cir. 1986).
    (2) As in United States v. Lovett, 328 U.S. 303 (1946) and ACLU et al., v. Norman Y. Mineta (civil action no. 04-0262).
    (3) As in INS v. Chadha, 462 U.S. 919 (1983) and Morrison v. Olson, 487 U.S. 654 (1988).