Obama Administration’s Anti-Gay DOMA Memorandum In Review.
Reports are circulating about the Obama Administration’s recent comments in their “Memorandum of Points and Authorities in Support of Defendant United State’s of America’s Motion to Dismiss” filed in the Smelt case [Case 8:09-CV-00286-DOC-MLG in the United States District Court, Central District of California, Southern Division]. Some blogs are already reporting that the administration equates gay marriage to “incest and child marriage.” However, after a review of the Memorandum, the reference to “incest” or “marrying children” relating to gay marriage is thus:
Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (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); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (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”).
The citing of case law was used to show a states interest in marriage, but it is considered an affront by many in the LGBT community.
A copy of the Removal to Federal Court (with the Original Complaint attached) is available in PDF here. It is important to note that the arguments made in the USA’s memorandum directly respond to the allegations made in the Complaint. The following is a summary [as simplified as possible] of the United State’s response to the allegations made by Smelt:
- The Court Lacks Jurisdiction: With this argument, the Defendant claims that because the case was removed from State Court, the Federal Court lacks jurisdiction. This is a challenge to legal process, rather than directly related to DOMA. It is interesting to note that the Defendant USA is the party that filed for removal of the action from the California Superior Court into the Federal Courts. If the Court determines that it lacks jurisdiction, no other points need be argued. The case will be dismissed.
- The Plaintiff’s Lack Standing: Generally speaking, standing under the law asks, does the party have sufficient stake in the controversy to bring a claim? If the answer is “no” then the party has no grounds for the lawsuit and it must be dismissed. Again, this is more procedural than with regard to DOMA specifically. The allegations made by the good ole US of A are that the Plaintiffs’ do not “‘have plans to seek recognition of their . . . California marriage in another state’ … have not established an ‘imminent injury’ and ‘do not suggest that they have applied for any federal benefits, much less been denied any at this point.'” As with jurisdiction, if the Court determines that Plaintiff lacks standing, no other points need be argued. The case will be dismissed.
- DOMA Is a Valid Exercise of Congress’s Power under the Full Faith and Credit Clause: The USA cites two factors as to why DOMA is not a violation of the Full Faith and Credit Clause being: (i) the Full Faith and Credit Clause “has never been construed to require one State to give absolute deference to another State’s laws in all circumstances; and (ii) because Congress is expressly empowered to prescribe “the Effect” of one state’s laws over another.
- DOMA Cannot Be Said to Violate an Asserted “Right to Travel”: The complaint filed by the Smiths does not specify what “Right to Travel” was denied under DOMA. This could be a “standing” issue as well as they have not shown imminent harm from the policy. It is obvious that DOMA does violate the Right to Travel; however, as the Federal government is responsible for issuing passports but will not recognize a name change as a result of a “same-sex marriage.” Therefore, should a passport be issued in the “maiden name” of one spouse, their state issued ID will not match the passport. This could potentially present problems with security checks, ticketing, hotel accommodations and customs when travelling abroad. The name on the airline “ticket” must match the name on the identification being used.
- DOMA Is Consistent with Equal Protection and Due Process Principles: Here, the USA argues our of both sides of its mouth, typical in such memorandum as an “in the alternative” sort of argument. On one point, they argue that DOMA does not violate equal protection because, essentially, gay men can marry a woman. They further argue that DOMA does not “prohibit gay and lesbian couples from marrying.” Obviously, DOMA in and of itself does not prohibit gay and lesbian couples from marrying – however, they later admit 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,” effectively rendering the marriages moot in under DOMA.
- DOMA Does Not Violate the Right to Privacy: In this argument, the Court actually sites the pro-choice case, Roe v. Wade, which many of those opposed to marriage wish to be overthrown, which held, “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ are included in this guarantee of personal privacy.” Thus, the United States argues that marriage is not a fundamental right (fundamental right is a right that is implicit in the concept of ordered liberty, they are not two separate test questions). Some examples of such fundamental rights upheld by courts include: (a) the common law right to self-defense; and (b) the protection of double jeopardy (which was originally found not to be a fundamental right, but later overturned). There is a distinction between the concept of “Human Rights” and “Fundamental Rights.” Of interest is the definition of fundamental right in the case, Duncan v. Louisiana, as: “[a right] necessary to an Anglo-American regime of ordered liberty.”
- DOMA Cannot Be Said to Infringe Upon any Rights of Speech: It is widely judicially accepted that “conduct” cannot be considered speech unless it is “inherently expressive.” The United States argues in the Memorandum that marriage is not inherently expressive and therefore cannot constitute speech. However, is marriage “inherently expressive?” To answer that question we can ask the question the Courts will ask to determine if conduct is “speech”: (a) Does the conduct in question convey a particularized message that would be understood by those who viewed it without consideration of the actual speech that accompanies the conduct? Although the Courts have held that obtaining a marriage license does not constitute speech, using the test question, it seems that the act of marrying would constitute speech. It is my opinion that there is no legitimate argument that the observer of a marriage ceremony would not understand the message being conveyed, even in the most narrow sense. However, the United States disagrees claiming that a marriage ceremony does not constitute inherent expression.
- DOMA Cannot Be Said to Infringe Upon any “Right” under the Ninth Amendment: The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The United States argues in the memorandum that the Ninth Amendment does not provide for any right but is used for construction purposes. It’s my opinion that they are correct in the interpretation of the Ninth Amendment because the concern at the time of ratification was that the “Bill of Rights” being listed would limit rights not otherwise enumerated. Therefore, the Ninth Amendment’s intention was to prevent rights not listed from being diminished. However, this means that rights to federal marriage benefits cannot be dismissed or diminished even though such rights are not enumerated in the Bill of Rights.
So that is the response of the Department of Justice to the Complaint, generally. The question thus remains, “Is the memorandum, written by attorneys for the Department of Justice, on behalf of the United States of America, whose Chief Executive Officer is Barack Obama, the opinion of the President of the United States?”
The duty of the United States in these cases is to aggressively defend legislation unless such legislation is blatantly unconstitutional. In the past, Obama has called DOMA ‘abhorrent’ and requested its repeal via legislative means. However, a direct legislative assault on the federal court’s jurisdiction with regard to DOMA is underway via H.R. 1269 [A bill prohibiting the federal courts from hearings on the constitutionality of DOMA] These mixed messages are exactly what is frustrating the lowly grass-roots activists while the major LGBT organizations sit back and take Obama’s advice, “Be patient.”
Well Mr. President, we have been patient. We believed Bill Clinton and he pushed the Defense of Marriage Act and Don’t Ask, Don’t Tell, we believed you and you requested the Supreme Court not hear challenges to Don’t Ask, Don’t Tell. We started believing in the United States again and the American dream only to have that faith stab us in the guts at the passage of Proposition 8, Amendment 2 and the countless other unconstitutional state bans on equality. There is no time like the present to stand up with those who stood so strongly with you rather than take a “wait and see” attitude.
They have taken away our liberty to marry, they have challenged our pursuit of happiness, they have even taken many of our lives – but they cannot and shall not have our “HOPE.”