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Obama Administration’s Anti-Gay DOMA Memorandum In Review.

June 12, 2009 By: jaysays Category: LGBT News, Marriage Equality

ObamaReports 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.”
  7. 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.
  8. 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.”

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7 Comments to “Obama Administration’s Anti-Gay DOMA Memorandum In Review.”


  1. There’s a great comment at Baytzim.com about Barack and the DOMA and why he flip-flopped.

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  2. “The duty of the United States in these cases is to aggressively defend legislation unless such legislation is blatantly unconstitutional.”

    Says who?

    The “practice” may be so, but there is no “duty” to do so.

    Furthermore, is the implication that Obama & Co. have concluded that DOMA is not “blatantly unconstitutional”? That’s news to me, and would probably come as news to his professors at HLS (e.g., Laurence Tribe): http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132×8467442

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    • Well, I just had a long response with links and accidentally navigated away, so here’s the just of it. So, The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 seems, on cursory review to imply a “duty.” That’s also what HRC President, Joe Solomonese, has stated, that the administration apparently determined they had a “duty” to defend the suit. Whether there is a legal duty, I suppose that’s for the courts to decide.

      As to the implication that Obama & Co. have concluded that DOMA is not “blatantly” or “inherently unconstitutional,” it would seem to reason that, if they: (i) determined the administration has a duty to defend legislation that they do not deem to be inherently unconstitutional; and (ii) choose to defend the legislation, then they have decided that the legislation is not inherently unconstitutional. So yes, if they have determined that duty, then they have clearly said they don’t believe DOMA to be inherently unconstitutional.

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  3. I’m a huge Obama supporter and continue to believe that he will follow through on his promises. None the less we cannot sit back and wait patiently in silence. I for one think it’s time for this administration to live up to it’s promises and hear our voices loud and clear.

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  4. Latest News
    05-20-09
    Boston Globe: Gays Being Kicked Out of Military at Steady Rate

    Posted by Bryan Bender May 19, 2009 01:48 PM
    By Bryan Bender, Globe Staff

    WASHINGTON — A steady number of troops are being discharged from the US military for being gay, according to the latest Pentagon statistics, which show that 619 troops were kicked out last year under the controversial “don’t ask, don’t tell” policy that bars homosexuals from serving openly in the ranks.

    The figures, which are on par with the previous four years, are bound to spark a new outcry from gay rights advocates who have grown frustrated with President Obama’s unwillingness so far to take steps to lift the ban, despite a campaign pledge to do so.

    Of the discharges for the fiscal year that ended September 30, 410 were male and 209 were female, according to the figures obtained by the Globe from Pentagon personnel officials. That compares with a total of 627 discharges in fiscal year 2007; 612 in 2006; 726 in 2005; and 653 in 2004.

    The new statistics come to light as the Obama administration comes under growing pressure to use his executive powers to place a moratorium on the discharges while he lobbies Congress to overturn the controversial 1993 law — which was enacted as a compromise after then-President Bill Clinton set off a mutiny when he tried to allow gays to serve openly in uniform.

    In recent weeks White House officials have declared that the president still intends to follow through on his campaign pledge, but said he will not intervene on current cases while the policy remains in place. At the same time, other administration officials have suggested a go-it-slow approach to ensure gays can be fully integrated into the ranks with as little disruption as possible.

    Secretary of Defense Robert M. Gates recently likened overturning the ban to integrating blacks into the ranks, a process that took five years. Meanwhile, Obama’s national security adviser, James L. Jones, said earlier this month he didn’t know if the ban would be lifted.

    The cautious view was also expressed by Army General David Petraeus, who oversees the ongoing wars in Iraq and Afghanistan, when he told a questioner at Kansas State University last month that “I’m not sure we want to add something else to our plate right now.”

    Pentagon spokesman Geoff Morrell told reporters earlier today that only initial discussions about the policy have taken place and that there is no expectation at this point that the policy will be changed.

    “I do not believe there are any plans under way in this building for some expected, but not articulated, anticipation that ‘don’t ask, don’t tell’ will be repealed,” Morrell said.

    But opponents of the current policy say that while they believe the military and the nation are ready to lift the ban, the longer the White House and Congress wait the more opposition will build. They cite a recent letter sent to the president by 1,000 retired admirals and generals organized by the right-wing Center for Military Readiness that urged him to maintain the ban or risk severely damaging troop morale.

    Saying the issue has reached a “stalemate,” Aubrey Sarvis, president of the Servicemembers’ Legal Defense Network, the main group pushing to lift the ban, said “we are urging the president to speak up and lead on this initiative.”

    “We feel an urgency and are desperately trying to convey that to the White House,” he said. “Every day service members continue to be discharged.”

    Sarvis’ group believes based on their own sources in the military that the discharges have continued apace since Obama took office, estimating that as many as 200 have been kicked out since he was inagurated in January. Those numbers could not be verified.

    Other leading gay rights advocates expressed disappointment with the new administration.

    “For many people, for many reasons, the policy continues to be a very emotional issue,” said Richard Socarides, a New York lawyer who served as an advisor on gay issues to Clinton. “It is the one area where the federal government is blatantly engaging in discriminatory conduct. For [Obama] to now be completely silent on this at best — and at worst have Gates equivocating — is very troubling to a lot of people.”

    Legislation to lift the ban has been proposed in the US House — where Democrats enjoy a large majority — but there remain deep doubts that the Senate would get on board. Sen. Edward M. Kennedy of Massachusetts has sought unsuccessfully for months to find a Republican cosponsor for the bill in the upper chamber, a step considered crucial to garnering enough votes to change the law.

    Until then, the Pentagon maintains it is simply following the law even though many of the discharges have been of soldiers with critical skills, including 94 linguists who have kicked out under the ban over the past decade.

    “This law requires the Department of Defense to separate from the armed forces members who engage in or attempt to engage in homosexual acts; state they are homosexual or bisexual; or marry or attempt to marry a person of the same biological sex,” said Cynthia Smith, a department spokeswoman.

    More than 13,000 troops have been discharged for being gay since 1993.

    http://www.sldn.org/news/archives/boston-globe-gays-being-kicked-out-of-military-at-steady-rate/

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    • How do they purport to be integrating them slowly when they don’t even know if they have any because if they find out they fire them? I don’t buy it.

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  5. Excellent job Jay!
    Don’t even get me started on this! I’ve been blogging about it and reading everything I can and I’m pretty dam angry and confused by it.
    I understand the reasons why it was defended but absolutely don’t understand the languages that was used and the references to the homophobic stereotypes that was used. I have been a HUGE Obama supporter, worked on his campaign, and I wish he would make a statement about this instead of the silence.
    I still have hopes this is a mistake BUT there is no denying that this brief has and will do damage to our community.
    Unacceptable, Mr President! Very disappointed and disillusioned.
    If anyone else is interested there are some links to this with a wide range of views at http://rappack.forumcircle.com/viewtopic.php?t=555.
    I don’t want to take up all the room here.

    What this writer said was also very interesting, one of the best so far in trying to explain this mess.

    A moment of your time _ The DOMA brief

    by KateG

    Sun Jun 14, 2009 at 01:31:40 PM PDT

    Perhaps many of you are tired of this topic. I was tired yesterday , but as one of my fellow posters pointed out to me, its good to get this topic discussed and understood here. And then I woke early this morning (like 5:30 I think) with all these thoughts in my head and I felt a pressing need to type them out. I obviously don’t speak for anyone but myself. None of this is new, since it was discussed so much yesterday but here it is all in one place.
    [more at: http://www.dailykos.com/story/2009/6/14/742290/-A-moment-of-your-time-_-The-DOMA-brief%5D

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