Update: Obama disses marriage law as Justice defends it
08.17.2009 3:51pm EDT
(Washington) President Barack Obama insisted Monday he still wants to scrap what he calls a discriminatory federal marriage law, even as his administration angered gay rights activists by defending it in court.
The president said his administration’s stance in a California court case is not about defending traditional marriage, but is instead about defending traditional legal practice.Justice Department lawyers filed new papers Monday seeking to throw out a lawsuit brought by a gay couple challenging the 1996 Defense of Marriage Act, or DOMA. Gay rights groups say that by doing so, the administration is failing to follow through on campaign promises made by Obama last year to work to repeal the law.
Department lawyers are defending the law “as it traditionally does when acts of Congress are challenged,” Obama said in a statement.
The Clinton-era law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.
Obama said he plans to work with Congress to repeal the law, and said his administration “will continue to examine and implement measures that will help extend rights and benefits” to lesbian, gay, bisexual, and transgender couples under existing law.
The government says in its court filing that it will defend the statute in this case because a reasonable argument can be made that the law is constitutional – a standard practice of government lawyers.
The mixed message got a mixed review from Joe Solmonese, president of the Human Rights Campaign, a gay rights group.
“It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act,” Solmonese said in a statement. “While they contend that it is the DOJ’s duty to defend an act of Congress, we contend that it is the administration’s duty to defend every citizen from discrimination.”
Walter Dellinger, a former solicitor general during the Clinton administration, praised Monday’s filing for striking “a delicate but appropriate balance between the government’s obligation to respect federal laws enacted by Congress and this administration’s policy and moral concerns about this particular law.”
The government’s previous filing in the case angered gay rights activists who supported Obama’s candidacy in part because of his pledge to move forward on repealing the law and the “don’t ask, don’t tell” policy that prevents gays from serving openly in the military.
The Justice Department is obligated “to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences,” said department spokeswoman Tracy Schmaler.
“DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage,” according to the filing by Assistant Attorney General Tony West.
The administration also disavowed past arguments made by conservatives that DOMA protects children by defining marriage as between a man and a 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,” lawyers argued in the filing.
Monday’s court filing was in response to a lawsuit by Arthur Smelt and Christopher Hammer, who are challenging the federal law, which prevents couples in states that recognize same-sex unions from securing Social Security spousal benefits, filing joint taxes and benefiting from other federal rights connected to marriage.
Justice lawyers have argued that the act is constitutional and contend that awarding federal marriage benefits to gays would infringe on the rights of taxpayers in the 30 states that specifically prohibit same-sex marriages.
Earlier this year, Massachusetts became the first state to challenge the law in court.





This is what I expected from Obama lip service but he sure doesn’t want anyone to look at both hands while he is talking as he reaches behind you with a knife and stabs you (us) in the back.
In other words he is talking out of both sides of his mouth and hopes you are not listening or paying attention.
And people wonder why we are still pillaring Clinton for this damn law. Shame on everyone who wants to forget. Never Forget the traitorous SOB.
Obama is a politician as SLEAZY & full of BULLSHIT like any other! Is perfect smile is only a distraction from his LIES! Like clinton befor him he uses the L G B T community & NEVER fullfills even the slitest of his “promises”. Why would be suprised?? He hires a woman who takes money from fast food corp & junk food makers.To heAd up the organazation that is suppose to get the citezens healthy.
DOUBLE TALK. I never believed a thing he said just cause his skin is diffrent shade of most politicans his brain aint no diffrent!SLIMY SLEAZY LAIR!!
Nope. Wallet still closed.
“The Justice Department is obligated “to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences,” said department spokeswoman Tracy Schmaler.”
This is legally not true. For example, see the following article and pay close attention to the comments following the article:
hunterforjustice.typepad.com/…/when-does-justice-department-decline-to-defend-statutes.html
There are a number of court cases, including US Supreme Court cases, which have held that the executive branch does NOT have to defend an unconstitutional law.
In addition, Reagan, Bush I, Clinton, and Bush II all refused to defend laws they thought were unconstitutional. This is just Obama sticking to gays again just like he has done since he was elected with our money, our time, our votes, and our energy. Don Gaudard, Professor of Law Emeritus
A few moments ago, I emailed the White House to express to President Obama’s staff my dissatisfaction and outrage with his administration. He has pushed civil rights legislation to the background of policies he wants to enact and has fed the gay community a few meager table scraps. Until he takes a strong stand on gay and lesbian human rights, I will not support his re-election, nor the candidacies of the Democrats in Congress. They have let us down far too often. Instead, I will gladly support independent party candidates.
I believe the President when he says he wishes to end DOMA, but he must initiate action and do so soon. Send a bill to Congress now and tell Democrats to push it.
“Obama has pledged to work to repeal the law.”
Mr President, lead, follow, or get the HELL out of our way because this will not stand!
Obama is two-faced. His administration defends DOMA and at the same time he promises again to fight to repeal it. I have lost faith in the promises he made to us before becoming president.
Wow, the Repugnicans are out today! Most of these comments sound planted by opposition forces. Grow up boys and girls…
I too believe that the GOP are out in full force considering the opinons express by the first couple of posts.
What? Just because Obama doesn’t wave a magic wand and give you everything means that he is backtracking. Talk about childish. Grow up!
For those that have no idea what the real world is like (the first 4 comment) we have the Christian Talaban (Fundies) that would be up in arms including the Mormon church saying that the goverment is going against the laws by not defending it. This way they cannot say that his administration is not defending the laws of the land while he works through legal channel to change the law. Is that wrong. No. It will take time but he has been in office 8 months. May I remind those that George Bush JR had two vactions at this time.
To me he is fulfilling his campaign promise. He is doing so carefully so that the fundies, GOP, and other dangerous fringe groups cannot cry fowl. He did everything by the book. It might take a while but so what.
May I also remind those other posters that he has problems left by the previous GOP goverments such out of control banks and wall street, exposing the lies and treason of the previous adminstration, closing Galmo bay, dealing with South Korea and other extermist nations, the wars, the economic, the housing crises, the healthcare, etc.
So what if he is taking his time. I rather he did and make sure that DOMA and DADT laws are taken down and stay down so that the GOP and their fringe groups cannot put them back up once Obama’s administration is out. i don’t want any loopholes so those fundies can reinstate those laws.
And for those that do not know it Clinton didn’t have a choice about DOMA and DADT the GOP congress and senate pushed through those laws.
“Disses” nice, would you say that if he was white…
I fully support this president even if it appears he is taking baby steps. He is politically living up to his word by building a consensus. This is a democracy not a dictatorship!
ps2os2,
what you are missing is that until the Congress changes the law, even if Obama disses it, he IS OBLIGED TO FOLLOW, TO OBEY AND TO DEFEND IN COURT IF NEED BE EXISTING LAW. He is not allowed or entitled to make up law as he goes along, any more than US Supreme Court justice Sonia Sotomayor or any one else who is not a legislator is allowed to. ONLY CONGRESS HAS THE RIGHT AND THE POWER as the legislative branch to make or change law. Obama can campaign for a change in law, he is allowed to do that, he is allowed TO SIGN A BILL INTO LAW OR TO VETO A BILL. But he has NO legislative power. As head of the executive branch, he can direct, ask, lead, visit foreign heads of state, address Congress, ask Congress to convene for national emergencies, be commander in chief etc. But he CAN NOT personally make up law much as we want him to, that is NOT his job or his power.
Obama DID NOT have to file a brief in favor of DOMA – that is a LIE!
Read:
http://www.americablog.com/2009/06/choice-to-defend-doma-and-its.html
MORMON Bush holdover W. Scott Simpson helped write and file anti-gay brief.
Obama, while stating that while he does not agree with DOMA, is nonetheless asserting that it IS constitutional.
As USUAL, he is talking out of both sides of his mouth – playing all sides against themselves and hoping to come out on top.
Sen. Kristin Gillibrand has done more for gay rites than Obama has with hsi feel good speeches (which seems to be the only thing he DOES have to offer the GLBT community).
NO MONEY – NO VOTES – while there is still NO ACTION!
So, Tara and Ballston, you’re saying that neither GOPers nor dissatisfied Dems have any right to speak up? Both of you ignore one monumental truth–if you can keep gays as second-class citizens, then state initiatives to attack civil rights law can make their way into the Federal system with the same “we can reasonably argue to keep it” mentality. This is something that most foreigners don’t understand about DOMA–its potential to be used to dismantle existing civil rights. It’s the kernel of a doctrine which could re-establish Plessy v Ferguson (separate but equal). Do you not see that upholding DOMA creates the opportunity to dismantle civil rights laws piece by piece? “Well, if DOMA is OK, then why do we have to have a law saying that women can’t be barred from working traditionally male jobs?” Upholding the status quo can be used as a tool to turn back the clock. If everything I’ve said sounds paranoid or alarmist, then please, Tara or Ballston, you explain to me why Obama WILL NOT do as each of the four preceding Presidents did? Why is Obama so insistent on having AG Holder defend this piece of crap? You don’t make an effort to defend something you don’t believe if you have the option not to.
Who are you people? How could anyone reading this not be angered by his DOJ’s move? He is NOT OBLIGATED to defend this law….that is simply a LIE made up by some staffer trying to provide cover. Another staffer got it right saying they were following history.
Since when does a civil-right platform running president defend history by attacking civil rights? If he meant one word of what he says, the DOJ would be NO SHOWS at these trials.
Obligated my xxx, he absolutely is NOT.
Obama is no friend of ours. He doesn’t have gay friends, he went to that scary church, he hangs out with homophobes and oh by the way he keeps appointing people that go against what he ran as so why are we surprised?????????????? Remember when he wanted the corrupt Senator from N.H. on his staff? The one that in no way would have supported the stimulus, the one later found to have set up his whole family in business at government expense in that abandoned Air Force base?
This man shows time and again why we should ignore every promise he makes.
If you voted for him, I could be saying I told you so, but instead I’m sad.