The Choice to Defend DOMA and Its Consequences

[ruggerson]

FULL TEXT


"Like many other gay people who support the president, and as someone who had hoped he would be a presidential-sized champion of gay civil rights from the start, I was disturbed by his administration’s brief defending the so-called Defense of Marriage Act (DOMA), filed late last week, in opposition to our full equality.

It had such a buckshot approach to it, a veritable kitchen sink of anti-gay legal theories, that it seemed expressly designed to inflict maximal damage to our rights. Instead of making nuanced arguments which took into account the president’s oft-stated support for repealing DOMA – a law he has called “abhorrent” – the brief seemed to embrace DOMA and all its horrific consequences.

I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.

No matter what the president’s personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.

I know and accept the fact that one of the Department of Justice's roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.

FULL TEXT

[merh]

1. Bullshit on the last line that you choose to put in bold letters.

I keep hoping that reason takes over and that all who have been posting these overly emotional and factually wrong and uninformed articles on the Smelt case would take a breath and let their minds overrule their emotions.

I can see it isn't about to happen any time soon.

Here is a different perspective, an informed opinion.

Defense of Defense of Marriage Act in Smelt case. OK? Yeah.
by LeftOfYou
Sat Jun 13, 2009 at 11:56:12 AM PDT

Yesterday's diary by Jed Lewison, pimped by BarbinMd today on the front page,caused me to reflect on my own experience of almost 10 years, once upon a time, serving as an Assistant Attorney General. The linked pieces reference the positions taken by the Obama Justice Department in Smelt v. United States, a challenge to the constitutionality of the federal, deplorably named, invidiously discriminatory, Defense of Marriage Act. The Obama Administration is taking criticism for filing a brief defending DOMA's constitutionality.

As Jed noted, the Obama Administration points out that it has an obligation to defend DOMA. Damn right. Just as an accused criminal gets a free lawyer from the public defender's office (and this offends many on the Right) a federal statute accused of being unconstitutional gets a free lawyer from the Justice Department. Rule of law demands it.

* LeftOfYou's diary :: ::
*
One of the oldest and most important jobs assigned to the United States Attorney General by the U. S. Code is the defense of statutes challenged as being unconstitutional. Even in a lawsuit between private parties, if one of them seeks a ruling against the constitutionality of a statute, a notice to the Attorney General must go out so that the government can intervene to defend the law. Federal court rule of civil procedure 5.1 bars a court from ruling against the constitutionality of a federal statute unless the Attorney General gets the required notice and opportunity to intervene to defend the statute.

This means that by law, the Attorney General, absent exceptional circumstances such as a case of obvious, legally indefensible, facial unconstitutionality, will zealously and within the bounds of the law defend any statute challenged in court as unconstitutional, even something of such repugnant purpose as the Defense of Marriage Act. Congress has a legitimate Constitutional expectation that the Executive Branch will defend against challenges to Congressional enactments, given the President's oath to preserve, protect and defend the laws of the United States.

If rule of law prevails, neither the political views of the public nor any segment thereof, nor of the President nor of the Attorney General nor of the Assistants assigned to handle the case, will make any difference at all in how the government goes about defending the constitutionality of its own statutes. It often falls to Justice Department lawyers to defend even bad laws.

Government lawyers will ordinarily defend a challenged statute with any arguments having any possible merit based on either existing law or extensions or modifications of existing law. They don't get to pick which side to be on. It's their job to come up with the best precedent and the best arguments in favor of their client's position, that is, that the law is constitutional.

In Smelt v. U.S., the Justice Department has more than ample, possibly meritorious arguments for dismissal. On the direct question of DOMA's constitutionality, one quite strong argument by the Attorney General is based on the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, cl. 2. The 2nd sentence of the clause explicitly empowers the federal government to resolve conflicts of laws issues between states, and the Defense of Marriage Act is just such a statute. A statute that explicitly exercises a power expressly granted to Congress in the Constitution is particularly difficult to challenge as facially invalid under some other part of the constitution. There remains hope, though, because DOMA is not really facially neutral. Some day an equal protection challenge probably, will overturn DOMA.

more @ http://www.dailykos.com/story/2009/6/13/742038/-Defense-of-Defense-of-Marriage-Act-in-Smelt-case.-OK-Yeah.-

And for all of this noise about the Smelt case, I have to wonder, has anyone even considered trying to help out Smelt and Hammer? Has anyone considered taking the time to thank them for fighting this fight for the last 9 years? Do they even matter?

I pray to god the "news" about Smelt and how it is portrayed does get folks off their ass. Maybe they will push away from their computers and actually do something. The least they could do is send a thank you to Smelt and Hammer.

[Autumn]

2. Very good article thank you

for posting it.

[merh]

3. OMG - You know what I just noticed.

The author of your article is to blame for DOMA - he was a special assistant for civil rights to Bill Clinton, the president that signed the bill into law.

He failed, he didn't make a difference, he let DOMA happen.

[ruggerson]

5. Idiotic

he was a Special Assistant to the President. He didn't write DOMA, Congress did. He didn't sign DOMA, Clinton did.

He is in no way whatsoever "to blame" for DOMA. One's boss often makes decisions that one disagrees with vehemently.

[merh]

8. Exactly my point.

The DOJ does not create the law, they cannot sign it, they do not write it, they are, by statute, required to defend it until the court holds the law to be unconstitutional or until it is repealed.

Basic civics lessons - the legislature writes the laws, the executive branch enforces it and the judiciary interprets it.

[berni_mccoy]

10. OOOO SNAP! AWESOME SETUP!

[mkultra]

13. +1 for ownage

[wyldwolf]

19. well played.

[scheming daemons]

22. Impressively played.....

[donco6]

6. Gotta give you credit for trying

But we all know the score here. GLBT 0: Political expediency 5.

[merh]

7. Just using the argument you all have been using all weekend.

The author of the article, by his own admission, worked as "a Special Assistant for civil rights to President Bill Clinton". Bill Clinton is the president that signed the DOMA into law. He is the one that made it happen. So, either the author fully supported DOMA and told Clinton to sign it or the author didn't agree with Clinton's actions and he had no impact on Clinton's actions and Clinton didn't tell him how to try his cases.

Here is the view of a federal government lawyer. He confirms what many have been arguing, the DOJ is doing its job when it defends the legislation passed by congress and signed into law by the president. That is what DOMA is, it is a horrible law, but it is the law until a court holds otherwise.

One of the oldest and most important jobs assigned to the United States Attorney General by the U. S. Code is the defense of statutes challenged as being unconstitutional. Even in a lawsuit between private parties, if one of them seeks a ruling against the constitutionality of a statute, a notice to the Attorney General must go out so that the government can intervene to defend the law. Federal court rule of civil procedure 5.1 bars a court from ruling against the constitutionality of a federal statute unless the Attorney General gets the required notice and opportunity to intervene to defend the statute.

http://www.dailykos.com/story/2009/6/13/742038/-Defense-of-Defense-of-Marriage-Act-in-Smelt-case.-OK-Yeah.-

You give me an example of a case the DOJ refused to litigate.

[dsc]

14. you are, I suspect purposely, mixing up the difference between a boss and an employee

Clinton was the boss as Obama is now. They are responsible for what their underlings do. Employees are not responsible for what their bosses do.

[merh]

16. Not at all - the special assistant is saying how much influence and

control the individual members of the DOJ have - I mean, he must be right, look how he stopped Clinton from signing the unconstitutional legislation that is DOMA. And he did his job so well and stood by his principles with his head held high that he stayed in Clinton's employ even after Clinton signed DOMA into law.

What a guy.

[Bluenorthwest]

17. Bill Clinton has not been President for many, many years

But, but Clinton! Was a failing argument for the Bushies just as it is now.
Your silly notion of blaming an assistant for DOMA is absurd. Some of us were there, we know what went down. We know who stood and who did not.
The two situations are not comparable at all. The daisy chain here shouting that 'Obama did not write it' then trying to blame a powerless underling for the actions of a Congress that ended over a decade ago, show their true hearts with the 'snaps' and joy taken in seeing the pain of others.
It is disgusting. The content and the style of delivery are both self serving and nasty. Both of the brief and the defenses of that brief.
Snap and play gotcha over a serious human rights issue. That says all that needs to be said about the hearts and minds in question. It is possible to take a differing position without all of that bullshit, and if you really felt your positions were valid, you'd give them respectful framing. But instead you carry on like kids on a playground.
Ohhhh, snap, what a set up, high five. Says it all. Shows it all. The rest is Obama's silence.

[merh]

18. Nope - see I blame Clinton for DOMA, he could have vetoed it

If it was so unconstitutional why didn't Socarides do anything to stop Clinton from signing it. Here he is telling you HE KNOWS the DOJ makes a difference, that they can object to unconstitutional laws - I mean he knows from experience.

Well, hell, he did a piss poor job didn't he - DOMA was signed and he stayed on with Clinton.

Richard Socarides is as responsible for DOMA as Obama is responsible for the DOJ's filing in Smelt.

See, you all don't want to admit it, but DOJ must be an independent body. You didn't like the Bush politicizing the DOJ but you want Obama to politicize it and to exceed his role.

The legislative branch writes the laws, the executive branch enforces the laws and the judicial branch interprets the law.

The only president who had it within his power to do a thing about DOMA was Clinton, he screwed folks but let's not blame the Big Dawg.

[IndianaGreen]

4. Obama might as well defend Dred Scott decision, or side with Topeka Board of Education

because that's the same moral plane he has chosen to stand by defending DOMA. Defending DOMA sends the message that LGBTs are inherently inferior to heteros.

[donco6]

12. And defending it using those particular arguments -

just goes to show how far the DOJ has been infiltrated by the religious right, and that's evidently fine with Obama and Holder.

[QC]

15. If he did, this place would be full of people telling us how brilliant it is

and how we should just have faith.

Personality cults suck.

[berni_mccoy]

9. It's not a choice.

[AntiFascist]

11. K&R n/t

[Mikley]

20. If you read the brief...

If you actually read 'this' Obama brief defending DOMA...

you'd soon come to realize that it could have been written by any member of the Westboro Baptist Church.

.I mean that.

_____


If the Obama Administration felt compelled to defend DOMA against the lawsuit - they could have just stated that the plaintiffs LACKED STANDING (haven't applied for Federal bennies yet) and leave it at that.


All you Obama apologists should be ashamed with yourselves.

.I mean that.


.

[merh]

21. All you Clinton apologist should be ashamed.

He is the only president who had any power over or control of DOMA. He could have vetoed it, written a signing statement saying it was unconstitutional. He did neither, he signed it into law.

There are 3 branches of government. The legislative branch writes the laws. The executive branch enforces the law. The judiciary interprets the law.

All laws passed by congress and signed into law by the president are deemed constitutional until the judiciary rules that they are unconstitutional.