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Gay Rights Groups Outraged By Obama DOJ's DOMA Brief

By Jeralyn

The Justice Department filed a brief today (available here) in a federal case in California. Gay rights groups are outraged.

This week, the Obama administration is facing the ire of gay rights groups after it filed a brief in California federal court defending the Defense of Marriage Act and calling it a "valid exercise of Congress' power" that is saving taxpayers money.

The Defense of Marriage Act, or DOMA, was signed into law by President Clinton in 1996. It doesn't prohibit same-sex marriages; instead, it says that no state "shall be required" to honor same-sex marriages taking place elsewhere or any "right or claim arising from such relationship."

Human Rights Campaign, Lambda Legal, the ACLU and other groups issued a joint statement today blasting the filing: [More...]

We disagree with many of the administration’s arguments, for example that DOMA is a valid exercise of Congress’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive.

The state of California has also filed a motion to dismiss the case (brief available here.)

I've had several e-mails from non-lawyer readers asking for my analysis. I'm just now beginning to read the brief. If anyone else has thoughts on it, I hope you'll post them in comments.

Update: From the DOJ brief, here are some of its arguments:

...[P]laintiffs cannot rely on a "right to privacy" to supersede DOMA, for as explained above, a "fundamental" right to same-sex marriage has not been recognized as such by the courts. ...Further, as also explained above, even if same-sex marriage had been acknowledged as a fundamental right, there would still be no "fundamental" right to receive federal benefits based on a gay or lesbian marriage, or to require other States to recognize such a marriage.

One particularly controversial section of the brief is this:

Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not.

....The constitutional propriety of Congress's decision to decline to extend federal benefits immediately to newly recognized types of marriages is bolstered by Congress's articulated interest in preserving the scarce resources of both the federal and State governments. DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources — and deciding to extend benefits incrementally — are well-recognized legitimate interests under rational-basis review.

This won't go over well either:

Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

And while the Brief repeatedly says gay marriage is not the issue, it includes this passage that I think clearly shows the Administration's position on the topic:

In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs' rights, even if same-sex marriage were accepted as a fundamental right under the Constitution.

...[R]egardless of whether same-sex marriage is appropriate policy, under current legal precedent there is no constitutional right to it, and that precedent is binding on these parties and this Court. While the Supreme Court has held that the right to marry is "fundamental," Zablocki v. Redhail, 434 U.S. 374, 383-87, 98 S. Ct. 673, 54 L.Ed.2d 618 (1978), that right has not been held to encompass the right to marry someone of the same sex.

Update: Here's Obama during the campaign on civil unions and gay marriage.

Full post as published by TalkLeft on June 12, 2009 (boomark / email).