Obama Justice Department Defends Defense Of Marriage Act – That Candidate Obama Opposed
EmailPresident 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
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Aravosis’s “holy cow” is cute, but those are valid arguments. Presumably, as long as marriages require a license there will be some requirements to what is “acceptable” for that license. Using examples of what is unacceptable is a fine argument to point that out.
Having said that, I think its just time for gay marriage. It is.
Posted by: MayBee | June 12, 2009, 7:12 pm 7:12 pm
What don’t you understand about Obama being all things to all people?
Against DOMA? So is Obama!
For DOMA? So is Obama!
Posted by: WhereWasThePress? | June 12, 2009, 7:17 pm 7:17 pm
Maybee- ‘Gay Marriage’ is an oxymoron in many states, and counting. Lawful Unions should admitted as a state-licensed institution, though, in my opinion. Gay and straight couples who support ‘marriage equality’ could get United, instead of married. That preserves the integrity of an ancient cultural and legal institution while accomodating same-sex couples looking for lawful identity.
Posted by: MarkLeavenworth | June 12, 2009, 7:23 pm 7:23 pm
All the gay-rights advocates would have to do is pass a measure to permit licenses for Unions, defining a ‘union’ to be such a domestic arrangement between 2 adults.
Posted by: MarkLeavenworth | June 12, 2009, 7:26 pm 7:26 pm
Many of us suspect that their real agenda is not gay-rights, but the destruction of marriage. By pursuing their rights through new terms, they would prove that argument false.
Posted by: MarkLeavenworth | June 12, 2009, 7:29 pm 7:29 pm
I just can’t take much more of this injustice! If Obama supports abortion, why can’t he support gays? Which is worse?
Posted by: Weaverron | June 12, 2009, 7:32 pm 7:32 pm
====That preserves the integrity of an ancient cultural and legal institution while accomodating same-sex couples looking for lawful identity.===
That isn’t what they want. They want marriage and nothing short will satisfy them.
Posted by: Axey | June 12, 2009, 7:35 pm 7:35 pm
I’m not legal scholar, but I note:
“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.”
Can I assume it was the previous administration that moved the case to the US Court? Any chance the Obama administration has made this request to avoid having the SCOTUS AFFIRM the DOMA, making it harder to repeal when somebody has the guts to try that?
Posted by: NMTucson | June 12, 2009, 7:42 pm 7:42 pm
I see what he’s doing…He’s trying to do the oppositve of what the conserves wanted to do the last few years…he wants a constitutional ammendment to support all marriage, including gay and lesbian marriage and he can do that through congress…which is what he’s trying to do…the same way we got the civil rights act/voting rights, etc. Just wait…have patience…I see what he’s doing and it will be okay…He understands all men are created equal and that under the law all are honored equal and inalienable rights…the time is coming, it will be okay.
Posted by: S | June 12, 2009, 8:02 pm 8:02 pm
Marriage is only a right for two people of the same sex if the organization authorizing the marriage defines marriage in those terms. The current laws of the US federal government define marriage as between a man and a woman. Until those laws change, gay marriage is not a right. Gays have the same rights as everyone else regarding marriage: to marry a non-blood relative adult of the opposite sex. That’s the current law, and the court should uphold that law.
If you want to change the law, do so through the legislative process. The courts is not the right place to be changing laws.
Posted by: Jarom | June 12, 2009, 8:05 pm 8:05 pm
Let me reiterate…explain…I MEANT the last few years, the last administration tried to get a constitutional ammendment protecting marriage between a man and woman…with the Obama admin. I believe it will be opposite, he’s going to go through all the appropriate venuess to make sure that marriage is guaranteed for all people, gay and straight…so, that’s what I meant, I think he’s shooting for congress to issue to guarantee marriage for all Americans no matter what their orientation is through all the correct venues…be patient, my friends, the time is coming, don’t worry, have peace.
Posted by: S | June 12, 2009, 8:10 pm 8:10 pm
Because what happened the last 8 years was this: We were a nation of men, or, more precisely, a handful of men. If Cheney, Yoo, Addington, Feith, Bush, and the rest didn’t like a law on policy grounds…well, we can just ignore it.
The man I voted for told me he would return us to a nation of laws, not of men. That means we follow (and apply, and defend–or else it means nothing) the law. Regardless of the whims or policy desires of the man in the chair. Because he is bound by the law, too.
That’s the change–the fundamental change we needed: we needed a President who understood his obligation to uphold the law (like the law or not).
That’s what I voted for, anyway. And that is, as the position on DOMA shows me, what we got.
Posted by: woman | June 12, 2009, 8:11 pm 8:11 pm
I just keep shaking my head everytime O’s name comes up in a story. The man always says one thing while contradicting actions are being instigated. I truly believe that he thinks peoole are deaf to his words. He’s a genius at distraction…the whole health care townhall mtg was a joke…the only story msm reported on was that he stopped everything to write a note for a child ditching school. Yeah! Are we kidding? If people hated us before—we’re quickly becoming the laughing stock. I’m not republican or democrat but God, someone needs to step up before we are off the track completely!
Posted by: Hope | June 12, 2009, 9:20 pm 9:20 pm
It’s completely idiotic to suggest that gay people seek to cause the destruction of marriage by seeking the legal benefits of marriage for themselves. Americans can be so desperately stupid.
Posted by: ryan | June 12, 2009, 9:31 pm 9:31 pm
The lesson here? Obama lies!
Posted by: paul | June 12, 2009, 9:42 pm 9:42 pm
Yeah, um…how fantastic that first cousins can legally marry each other in New Mexico but gay and lesbian couples cannot.
Posted by: Angela | June 12, 2009, 10:40 pm 10:40 pm
Obama could care less about gays or women. He appointed Alexia Kelly to head Department of Health and Humans Service’s. This woman believes abortion should be illegal and opposes birth control, even for married couples.
WE were used.
Posted by: Tina | June 13, 2009, 12:07 am 12:07 am
ryan- Unfortunately that’s the kind of feedback I keep getting from people like you for promoting gay rights through lawful unions while preserving marriage, the oldest social and legal institution on the planet.
Posted by: MarkLeavenworth | June 13, 2009, 12:23 am 12:23 am
Obama and the Democrats took gay money, gay votes and gay volunteers by the millions and began spitting in the face of eth gay community the day of the inaugeration by elevating a known bigot-Rick Warren to the status of national prayer leader.
2 day ago he asked the Supreme Court not to hear a challenge to DADT and now asks a federal appeals court not to here a DOMA challenge.
His own parents marriage would not have been legal if the Supreme Court had not intervened, becuase mixed race marriages were against the law in most states. God the gall!
Enough! Gays and Lesbians…give your money, time and votes to the Republican party in 2010. Do it en masse. Not because Republicans are friends to the LGBT community, they are in fact quite the opposite.
Do it because the Democarts need to learn what it is to betray a group that holds the balance of power in the electorate. the LGBT community comprises only about 7% of the electorate but votes at about in the 90% range for major elections. Far more than any other group, including the elderly.
SHOW YOUR POWER! make the Democrats very, very afraid. One catastrophic loss of the LGBT vote is all it will take do it. See how it feels “JUST ONE TIME”.
Posted by: Michael ONeal | June 13, 2009, 12:34 am 12:34 am
This is a moment of clarify for LGBT community. It’s not just Obama’s decision to defend DOMA that raises grave concerns. Obama’s unbridled condemnation of gays in federal court is so vile, so hateful, and so chilling that it should leave no doubt in anyone’s mind that he is a “fierce advocate” against equality and a public “enemy” of LGBT community. Let’s keep it real: Obama has passed the point of no return with LGBT community.
Posted by: Rick | June 13, 2009, 1:03 am 1:03 am
Obama just throws everyone under the bus doesn’t he?
I wonder what percentage of the gay and lesbian community voted for him.
Posted by: Michelle | June 13, 2009, 9:17 am 9:17 am
The POTUS doesn’t worry about the ‘LGBT’ voters.. they are like so many subgroups.. they are always going to vote for the Democratic candidate.. they don’t have anywhere else to give their support…
Posted by: DontGet818OnMeNow | June 13, 2009, 3:41 pm 3:41 pm
So where are all those Hollywood stars that are so vocal in their support for gay rights?
I guess their support for Obama is more important.
Or maybe they are just stunned that he flat out lied to them–the stars and the gay community.
Posted by: max | June 13, 2009, 4:18 pm 4:18 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 | June 13, 2009, 5:47 pm 5:47 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 | June 13, 2009, 7:41 pm 7:41 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 | June 13, 2009, 9:54 pm 9:54 pm
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 | June 13, 2009, 10:37 pm 10:37 pm
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 | June 15, 2009, 2:51 am 2:51 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 | June 15, 2009, 8:38 am 8:38 am
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 | June 15, 2009, 8:46 am 8:46 am
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 | June 15, 2009, 1:28 pm 1:28 pm
D Legin,
Thank you for the correction.
Posted by: tanarg | June 15, 2009, 3:56 pm 3:56 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 | June 15, 2009, 6:43 pm 6:43 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 | June 16, 2009, 8:14 pm 8:14 pm
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 | June 16, 2009, 11:08 pm 11:08 pm
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 | June 17, 2009, 1:33 am 1:33 am
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 | June 17, 2009, 4:56 am 4:56 am
“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 | June 18, 2009, 4:21 pm 4:21 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 | June 19, 2009, 12:18 pm 12:18 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 | June 19, 2009, 12:23 pm 12:23 pm
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 | June 19, 2009, 11:14 pm 11:14 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 | July 6, 2009, 6:09 am 6:09 am
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 | August 19, 2009, 12:02 pm 12:02 pm
This is another Roseanne Palmer with another point of view. It’s only a matter of time before prejudice and ignorance is replaced with fairness and enlightment. Gay Marriage and equality for GLBT is on the way, it’s only a matter of time. A person can keep their old prejudice views of my parent’s generation or that person can change and bury those old views in hole along with racism and sexism and the other restricting short sited views.
Posted by: Roseanne Palmer | November 16, 2010, 4:47 pm 4:47 pm
my question
Can Obama just remove ANY Federal Law he wishes at his whim??
The marriage law FEDERAL LAW 1996 Defense of Marriage Act in the Justice Department.
Posted by: firedup49 | February 23, 2011, 3:34 pm 3:34 pm