Obama administration appeals gay marriage ruling

[TaylorMade]

Obama administration appeals gay marriage ruling (http://www.reuters.com/article/idUSTRE69B63U20101012)

By Jeremy Pelofsky
WASHINGTON |
Tue Oct 12, 2010 7:06pm EDT

EXCERPT:


(Reuters) - The Obama administration decided on Tuesday to appeal a judge's rulings that prevented the U.S. government from banning same-sex marriages, a move that could undermine support among President Barack Obama's traditional liberal base ahead of a key election.

The Obama administration filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act, or DOMA, that barred gay marriages, even though Obama had previously opposed the law.

~*~*~*~*~*~*~*~*~

Supposedly the Adminstration is obligated to defend DOMA in court. If that is true... then tough break for the administration.

Anyone who actually practices law care to share some insight here?

*Taylor*

[bityme]

I no longer practice law, but the executive branch of the government is tasked with enforcing the law. However, it can also make an independent determination that a law is unconstitutional and refuse to enforce it.

DOMA has never withstood a true court test of constitutionality. It obviously violates the equal protection clause when it supposedly gives the states the right to refuse recognition of same sex marriages from other states. Especially since all states are required by treaties to recognize all marriages from other countries.

There is also the possibility that the administration will submit a weak brief so that the Court of Appeals can find the law unconstitutional. But I won't hold my breath on that one.

[TaylorMade]

I no longer practice law, but the executive branch of the government is tasked with enforcing the law. However, it can also make an independent determination that a law is unconstitutional and refuse to enforce it.

DOMA has never withstood a true court test of constitutionality. It obviously violates the equal protection clause when it supposedly gives the states the right to refuse recognition of same sex marriages from other states. Especially since all states are required by treaties to recognize all marriages from other countries.

There is also the possibility that the administration will submit a weak brief so that the Court of Appeals can find the law unconstitutional. But I won't hold my breath on that one.

Thanks for the insight, bityme. I didn't vote for this current set , but - - I'm flabbergasted every time this happens.

*Taylor*

[jamieknyc]

It is one of the functions of the Justice Department and the Solicitor General to defend constitutional challenges to federal statutes. However, they are not obligated to do so and can admit that the government's position has no legal basis.

In other words, the Obama administration made a decision to defend DOMA even though it has no obligation to do so.

[12voltman59]

For some reason----I am not too surprised this happened.

The question now is: "how vigorous will be the Obama Justice Dept's defense of the DOMA be?"

[Pasadenacpl2]

If this were the Bush administration, y'all wouldn't be so charitable.

Just sayin.'

Pasa

[bityme]

This case is certainly going to turn out to be interesting. It is actually a combination of two cases, Gill v. Office of Personnel Management which questioned only the DOMA provision that defines marriage as the union of a man and a woman, and Massachusetts v. United States Department of Health and Human Services which challenged the constitutionality of DOMA.

So far, the Obama administrations participation has had varied results.

In February 2009, a United States Court of Appeals for the Ninth Circuit (California) judge, sitting as an employment dispute resolution tribunal, where the federal government refused to grant spousal benefits to the same sex spouse of a deputy federal public defender, ruled DOMA unconstitutional. (Federal employees can't sue the government in federal court.)

In August of 2009, Smelt v. United States of America, was dismissed by the federal court because it had originally been improperly filed in the California State court. In one of its briefs, however, the Department of Justice made the statement that: "With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here."

Following the filing of that brief, the White House issued the following statement. "Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law."

On July 8, 2010, Judge Tauro of the United States District Court in Boston issued his rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases. He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause of the Constitution.

It appears that the new appeal has been filed under the same policy considerations that they enunciated in "Smelt." It just might be that Obama’s boys are taking the lead of gay Congressman Barney Frank and John Berry, head of the Office of Personnel Management and the highest-ranking openly gay political appointee, who did not the effort to repeal DOMA, on the basis that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management.

Another interesting aspect of this issue is the possible flood of other problems that might be caused by an ultimate finding that DOMA is unconstitutional. For instance, such finding would establish that the regulation of marriage is a power reserved by the states under the Tenth Amendment. Would the IRS then be obligated to recognize the definition of marriage by each of the 50 states and allow same sex marital partners to file their tax returns as "married, filing jointly" in the future as well as file amended returns for all past years since DOMA was signed into law by President Clinton? Would prisoners in same sex marriage states have to be permitted to marry their cellmates if they so desired? Would the Equal Employment Opportunity Commission (EEOC) be required to issue right to sue authorizations to same sex marital partners who move to non-same-sex states and are refused marital benefits in the new state? The list goes on.

It just might be that this appeal is the best chance of Obama fulfilling his campaign platform position that DOMA should be repealed given the reluctance of Congress to follow through on the Respect for Marriage Act. Since the DOJ is already on record supporting DOMA's repeal and characterizing it as discriminatory, the United States Court of Appeals and the United States Supreme Court might very well adopt that position and find it unconstitutional.

[Gay2Bi]

It just might be that Obama’s boys are taking the lead of gay Congressman Barney Frank and John Berry, head of the Office of Personnel Management and the highest-ranking openly gay political appointee, who did not the effort to repeal DOMA, on the basis that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management.

...

It just might be that this appeal is the best chance of Obama fulfilling his campaign platform position that DOMA should be repealed given the reluctance of Congress to follow through on the Respect for Marriage Act. Since the DOJ is already on record supporting DOMA's repeal and characterizing it as discriminatory, the United States Court of Appeals and the United States Supreme Court might very well adopt that position and find it unconstitutional.

That was my take on it. Congress hasn't acted on it, so the appeals process is probably the only option to challenge the law. For those who favor repeal, it's a risky gamble - the decision finding the act unconstitutional could be overturned; but even if it's upheld, it brings up others issues that will need clarification - possibly through further lawsuits. From a political point of view, however, it's a pretty safe move - if the outcome proves unpopular, the blame will fall on the Court of Appeals or the SCOTUS.

[darkeyes]

Obama and his administration, most Democrats and Republicans are not "fierce advocates" for GLBT rights either.

If Obama an his legions in Congress wer fierce advocates a LGBT rights.. it wudda been sorted by now... dont think they r desperately opposed by ther support is half hearted at best..:(

..the Republicans?? Am sayin nowt ther...:tong:

[Conran]

If this were the Bush administration, y'all wouldn't be so charitable.

Just sayin.'

Pasa

Agreed.

The day Obama won was an incredible day full of hope and promise.
And the change we all expected is... well it's... Erm... I'm sure he'll get around to it. ;)

I fear that the election of Obama has been the death-knell for trust in government on many levels.
After Bush a whole generation of new voters were empowered to change things. They were mobilized on the idea of change.
I worry that an entire generation of those new voters now feel betrayed and completely detached from their government in a way that has never happened before.

I am a liberal. I appreciated Obama in his election campaign. But to see Obama fail in so many ways is quite crushing. And I have to say that I hope you'll see a third party, this two-headed monster of republican and democrat shares the same heart.

[void()]

"I fear that the election of Obama has been the death-knell for trust in government on many levels.
After Bush a whole generation of new voters were empowered to change things. They were mobilized on the idea of change.
I worry that an entire generation of those new voters now feel betrayed and completely detached from their government in a way that has never happened before."

Already there myself, for more reasons than this alone.

One of the reasons was recently portrayed well in the new Robin Hood movie with Russel Crowe. It presented a solid view of 'The Charter of Free Men', a.k.a the Magna Carta which later paved the route for the US Bill of Rights, Constitution.

Here in the US we can hunt for food but only if we pay the State/King. I think such an abomination. If need arises I will hunt without government approval or taxation. And I won't feel the least bit unpatriotic or shameful for breaking the law. When the law obliges only the affluent to gain more and oppresses the common folk, time to be an outlaw.

And while I'm all for keeping the Church out our governing, they ought to provide charity and do 'the Good Work'. The State should promote this, as well. Folks ought to give over to help in the name of helping their fellow man.

What lay behind one's bedroom doors ought not be anyone's concern unless directly involved. Even then, no reason to traipse it over rooftops. Who cares anyway? We're all the same mates.

Being the same mates also means trusting others to be in the spirit of the good work. Beyond ensuring that, the State need not apply itself. Yet it keeps hedging inward upon us without any benefit. I hold no confidence or faith in the State. So, I do not vote. That is my vote.

[azirish]

Are you kidding? How dare you besmirch the "messiah". After all we were told he was "ready to rule" from day one..presidents don't "rule" dictators do. On to the other subject why would anyone be "surprised" a politician lied..its the nature of "politics" use any group for you're own self interests then abandon then dispose of when they are no longer good for their self interests. Have you ever heard the saying "useful idiots"?

Agreed.

The day Obama won was an incredible day full of hope and promise.
And the change we all expected is... well it's... Erm... I'm sure he'll get around to it. ;)

I fear that the election of Obama has been the death-knell for trust in government on many levels.
After Bush a whole generation of new voters were empowered to change things. They were mobilized on the idea of change.
I worry that an entire generation of those new voters now feel betrayed and completely detached from their government in a way that has never happened before.

I am a liberal. I appreciated Obama in his election campaign. But to see Obama fail in so many ways is quite crushing. And I have to say that I hope you'll see a third party, this two-headed monster of republican and democrat shares the same heart.

[TaylorMade]

Why would anyone in their right mind or someone who is actually really for GLBT rights be charitable or claim anything favorable about the Bush administrations, or claim these things about any Conservative or Republican president or politician?

Obama and his administration, most Democrats and Republicans are not "fierce advocates" for GLBT rights either.

You just made pasa's point for him. <giggle>

*Taylor*

[TaylorMade]

This case is certainly going to turn out to be interesting. It is actually a combination of two cases, Gill v. Office of Personnel Management which questioned only the DOMA provision that defines marriage as the union of a man and a woman, and Massachusetts v. United States Department of Health and Human Services which challenged the constitutionality of DOMA.

So far, the Obama administrations participation has had varied results.

In February 2009, a United States Court of Appeals for the Ninth Circuit (California) judge, sitting as an employment dispute resolution tribunal, where the federal government refused to grant spousal benefits to the same sex spouse of a deputy federal public defender, ruled DOMA unconstitutional. (Federal employees can't sue the government in federal court.)

In August of 2009, Smelt v. United States of America, was dismissed by the federal court because it had originally been improperly filed in the California State court. In one of its briefs, however, the Department of Justice made the statement that: "With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here."

Following the filing of that brief, the White House issued the following statement. "Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law."

On July 8, 2010, Judge Tauro of the United States District Court in Boston issued his rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases. He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause of the Constitution.

It appears that the new appeal has been filed under the same policy considerations that they enunciated in "Smelt." It just might be that Obama’s boys are taking the lead of gay Congressman Barney Frank and John Berry, head of the Office of Personnel Management and the highest-ranking openly gay political appointee, who did not the effort to repeal DOMA, on the basis that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management.

Another interesting aspect of this issue is the possible flood of other problems that might be caused by an ultimate finding that DOMA is unconstitutional. For instance, such finding would establish that the regulation of marriage is a power reserved by the states under the Tenth Amendment. Would the IRS then be obligated to recognize the definition of marriage by each of the 50 states and allow same sex marital partners to file their tax returns as "married, filing jointly" in the future as well as file amended returns for all past years since DOMA was signed into law by President Clinton? Would prisoners in same sex marriage states have to be permitted to marry their cellmates if they so desired? Would the Equal Employment Opportunity Commission (EEOC) be required to issue right to sue authorizations to same sex marital partners who move to non-same-sex states and are refused marital benefits in the new state? The list goes on.

It just might be that this appeal is the best chance of Obama fulfilling his campaign platform position that DOMA should be repealed given the reluctance of Congress to follow through on the Respect for Marriage Act. Since the DOJ is already on record supporting DOMA's repeal and characterizing it as discriminatory, the United States Court of Appeals and the United States Supreme Court might very well adopt that position and find it unconstitutional.


Uphold the law in order to destroy it? That's why some people don't like lawyers. :p

*Taylor*

[rissababynta]

People seem to forget that the President does not have total control. He could want certain things, or not want certain things, but if everyone else in his staff sees things differently then it's too bad for him. Yes Ladies and Gents...the president CAN have people override him. Unless you are one of his staff, you don't really know what things are his decisions or not, so to sit here and start bad mouthing him like some people do over decisions that were made are kind of silly...

[elian]

Government is on the verge of repealing don't ask don't tell - I would say that's a step in the right direction. It is really sad that they can't take a stand on the side of love. I really hate this time of year with all of the politics.

I would still go for civil unions or domestic partner benefits though - even if you can't call it marriage. I wonder if this is just a case of the government trying to see how much power they have?

http://www.youtube.com/watch?v=b-awVQkTeVE

I still want to believe in the change message - at first I didn't get it - they said "Change", I said "How?" but I watched the will i am video and something clicked - trying to pull people together instead of dividing them apart. It's an inspirational video - I just hope that it's more than pretty words - what frustrates me is that people have such short memories - as if the president can somehow instantaneously and miraculously pull this country out of the LAST 8 years of abuse. Lack of regulation of the finance industry? I mean no disrespect to the men and women serving in the current conflict, but it amazes me how much we are spending on private security forces in addition to the regular military...and I am concerned for the folks serving in the urban situation. We have a very big price tag to pay. It angers me that wall street got a free ride despite their greed but who is to say that the depression we are in wouldn't be even worse without ARRA? I for one have seen lots of work in the construction industry due to stimulus money - not flashy stuff - but bridges and other critical infrastructure upgrades that we MUST do to keep things moving.

I like my waffles with syrup and butter, by the way.

http://yeswecan.dipdive.com/tv/#/~/videoplayer/0/169/2207/~/