The Obama Administration’s fight against the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman, will undermine marriage and create a serious breach of Church-State relations, Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops, wrote in a September 20 letter to President Barack Obama,

The Administration’s assault on DOMA, Archbishop Dolan said, will “precipitate a national conflict between Church and State of enormous proportions and to the detriment of both institutions.”

The letter with its accompanying analysis of the Administration’s threats to marriage can be found at http://www.usccb.org/issues-and-action/marriage-and-family/marriage/promotion-and-defense-of-marriage/upload/dolan-to-obama-doma-letter-sept-20-2011.pdf

Archbishop Dolan especially objected to the Justice Department’s legal arguments that equate those in favor of DOMA to racists. It is “particularly upsetting,” he said, when the Administration attributes to those who support DOMA “a motivation rooted in prejudice and bias.It is especially wrong and unfair to equate opposition to redefining marriage with either intentional or willfully ignorant racial discrimination, as your Administration insists on doing,” he said.

He underscored the Church’s position recognizing “the immeasurable personal dignity and equal worth of all individuals, including those with same-sex attraction” and said “we reject all hatred and unjust treatment against any person.”

Labels: Barack Obama, Catholic Church, DOMA, gay marriage, religion, religious liberty

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Virginia Attorney General Ken Cuccinelli has terminated his office's relationship with King & Spalding, the Atlanta law firm that abrubtly dropped the U.S. House of Representatives as a client for purposes of defending the Defense of Marriage Act.

"King & Spalding's willingness to drop a client, the U.S. House of Representatives, in connection with the lawsuit challenging the Defense of Marriage Act (DOMA) was such an obsequious act of weakness that I feel compelled to end your legal association with Virginia so that there is no chance that one of my legal clients will be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives," Cuccinelli said in a letter to Joseph Lynch in the firm's Washington, D.C. office.

Labels: culture, DOMA, gay marriage, Virginia

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Former Solicitor General Paul Clement took quite the parting shot at his former Washington law firm Monday when he announced that he would leave King & Spalding so that he could continue to represent House Republicans in their effort to defend the Defense of Marriage Act. In his resignation letter, Clement wrote:

To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General. Instead, I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters.

Ouch! Calling out your now-former colleagues as cowards is quite the bold move, especially for someone as typically cautious as Clement and especially since he lost neither the client nor the case. Clement will still defend the Marriage Act in federal court and his client will still be Rep. John Boehner, the Speaker of the House. Only Clement will do so with a different supporting cast of lawyers and paralegals and from the tony offices of yet another white-shoe D.C. law firm. As a matter of law, nothing, absolutely nothing, changes on account of Monday's made-for-cable whipsaw. As a matter of politics and protocol, however, boy oh boy is this an uncomfortable way to start the first days of the rest of the DOMA's life.

Labels: culture, DOMA, gay marriage, law

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Last month, when Attorney General Holder announced that discrimination on the basis of sexual orientation warranted “heightened scrutiny” under the Equal Protection Clause, and that §3 of the Defense of Marriage Act was unconstitutional under this standard, it was not immediately clear what level of scrutiny he was advocating. ...

Holder borrowed this anti-stereotyping principle from sex-based equal protection law. In cases such as U.S. v. Virginia (which Holder cites), the Court has held that the state may classify on the basis of sex when doing so serves to disrupt sex-role stereotypes, but not when it reflects or reinforces such stereotypes. “Real differences” between the sexes do not trump or negate this rule. The state may take real differences into account when seeking “to promot[e] equal employment opportunity” or “advance full development of the talent and capacities of our Nation’s people,” but such differences may not be used to justify state action that reflects or reinforces traditional conceptions of men and women’s roles.

Holder’s adaptation of this anti-stereotyping principle illustrates the potential of orientation-based equal protection law. An anti-stereotyping principle would enable courts to invalidate laws restricting marriage to different-sex couples without further stigmatizing relationships outside of marriage. It would protect sexual minorities across a wide range of contexts (including parenting, work, and health) that the marriage-as-a-fundamental-right approach fails to reach. Under an anti-stereotyping approach, “real differences”—such as the fact that same-sex couples cannot conceive children on their own—could not be used to justify state action that reflects or reinforces stereotyped conceptions of gay parents and their children. This way of doing gay rights would help protect the liberty of all gays and lesbians to develop their capacities and form families free from “the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

Labels: culture, discrimination law, DOMA, gay marriage, gay/straight differences, gender differences, law

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President Obama believes that the Defense of Marriage Act is unconstitutional and will no longer defend the 15-year-old law in federal court, the Justice Department announced today.

The decision, which stunned and delighted gay rights activists, means that the administration will withdraw its defense of ongoing suits in two federal appeals circuits and will leave it to Congress to defend the law against those challenges. It will remain a party to the lawsuits. The law itself remains in effect.

DOMA, signed by President Clinton in 1995, allows states not to recognize same-sex marriages preformed in other states and provides a federal definition for “marriage” that exempts same-sex couples.

Attorney General Eric Holder said that Obama had decided to subject classifications based on sexual orientation to a “more heightened standard of scrutiny.” That means that the federal government no longer believes that there is a “rational basis” for discriminating against gays.

“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder said in a statement.”

He said that Obama also concluded that Section 3 of DOMA, which defines “spouse” as an member of the opposite sex, “fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.” ...

The announcement today does nothing to the law directly. That would take an act of Congress or a final finding by the judicial branch, probably the Supreme Court. But it changes the vector of the legal cases considerably. Privately, the administration believes that five justices of the Court, including Anthony Kennedy, the swing vote, would find parts of most of DOMA invalid if the federal government withdrew its arguments that the law was unconstitutional.

Labels: Barack Obama, DOMA, gay marriage

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...DOMA was not controversial. It was passed by robust bipartisan majorities — 85 senators and 342 representatives — and readily signed by President Bill Clinton. Moreover, it was replicated at the state level almost everywhere: 45 states define marriage as the union of male and female, 30 of them in their constitutions.

But five states and the District of Columbia do allow same-sex couples to marry, and the crusaders’ strategy to redefine marriage by judicial fiat proceeds. Which is why Gay & Lesbian Advocates and Defenders, the legal organization that successfully litigated Goodridge, was in federal court last week, urging a judge to rule that the Defense of Marriage Act unconstitutionally discriminates against gay and lesbian couples.

Attorney Mary Bonauto told US District Judge Joseph Tauro in Boston that by restricting the federal definition of “marriage’’ to opposite-sex couples, DOMA unfairly relegates married same-sex partners to second-class status. Not only that, she claimed, it negates “the longstanding deference of federal to state law in determining the marital status’’ of individuals claiming federal benefits.

But neither objection holds water.

Labels: DOMA, gay marriage

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The government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman. Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

Labels: Barack Obama, DOMA, government interest in marriage

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During the third day of confirmation hearings for Supreme Court nominee Sonia Sotomayor, the associate justice hopeful was asked -- in a sideways manner -- about the federal Defense of Marriage Act.

Iowa senator Chuck Grassley asked Sotomayor whether same-sex marriage is under federal jurisdiction, especially timely with a case to repeal California's Proposition 8 making its way through the court system.

Grassley mentioned the case Baker v. Nelson, a 1972 ruling that Minnesota's laws limiting marriage to opposite-sex couples did not violate the U.S. Constitution.

Sotomayor replied that she could not comment on the matter, because of the pending marriage cases in states across the country, as well as the federal case heading in the Supreme Court's direction. She also said that she had not reviewed Baker, but offered to read the case and speak about it Thursday.

Labels: courts, DOMA, gay marriage

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President Obama, who said as a candidate that he would seek repeal of a law denying federal recognition of same-sex marriage, has angered gay rights groups with court arguments portraying the law as a nondiscriminatory measure that "preserves scarce government resources."

The Justice Department's filing with a federal court in Santa Ana was the administration's first statement on the constitutionality of the Defense of Marriage Act, the 1996 law that denies federal marriage benefits to same-sex couples. Those benefits include joint tax filing, Social Security survivors' payments and spousal immigration status.

The law also allows states to withhold recognition of same-sex marriages performed in another state or country.

Obama called the law "abhorrent" during the presidential campaign and said he would work to overturn it. He has not presented any such legislation to Congress since taking office, however. ...

The Justice Department issued a statement saying Obama wants the law repealed "because it prevents LGBT (lesbian, gay, bisexual and transgender) couples from being granted equal rights and benefits. 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 the department also defended the 1996 law's restrictions. Its court filing steered clear of the justification of the law it had offered under President George W. Bush: that it promotes a traditional form of marriage best suited for procreating and raising children.

Labels: DOMA, Obama

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[Jon Pahl is Professor of the History of Christianity in North America at The Lutheran Theological Seminary at Philadelphia. He recently edited and published An American Teacher: Coming of Age and Coming Out, the Memoirs of Loretta Coller (Infinity Publishing, 2009). ]

A recent article in The Atlantic and recently released Lutheran documents give good reasons to revisit the status of gays and lesbians across American society. Unfortunately, few commentators to date have addressed the most troubling development of the past few years: the growth of DOMA Laws, or "Defense of Marriage Acts." These laws are forms of religious violence. ...

5) DOMA Laws confuse legislation with religion, and violate the First Amendment, as Ann Pellegrini and Janet Jakobsen have argued. It is entirely permissible (although ethically subject to scrutiny) for private communities to shape the boundaries of association in whatever ways members agree upon. It is a violation of the First Amendment's protection of free association to inhibit by law some forms of association that pose no harm to the common good, and a violation of the freedom from an established religion when religiously-inspired exclusions are written into law.

6) DOMA Laws perpetuate an association of sex with power, and thereby do damage to any sacramental sensibility that might remain in association with even heterosexual marriage. As Hendrik Hartog and other historians have shown, marriages have shifted in the modern era from patriarchal patterns of coverture to social contracts in which couples seek mutual fulfillment. Such contracts might be compatible with a sacramental sensibility, since they entail pledges of sexual fidelity and commitments to share social resources and responsibilities, along with (one might argue) other gifts of God. DOMA Laws associate sexual fidelity with legislated forms of coercive power, and inhibit the deep trust and mutuality intrinsic to modern (and sacramental) marriage. They establish hierarchies of relationships, and associate heterosexual unions (and sexual practices) with dominance.

Labels: DOMA, religion

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Today, the legal organization GLAD (Gay and Lesbian Advocates and Defenders) filed a lawsuit challenging the federal Defense of Marriage Act (DOMA), which, in pertinent part, denies same-sex married couples every single Federal benefit related to marriage. The suit, brought on behalf of eight married couples and three widowers, is the first concerted, multi-plaintiff to Section 3 of the Act, which denies spousal protections in Social Security, federal income tax, federal employees’ and retirees’ benefits, and the issuance of passports. It is also the first suit in which plaintiffs who were married in their state of residence applied for federal benefits and were denied them.

The plaintiffs’ claim is a powerful one, and it’s hard to imagine how one could write an intellectually honest opinion rejecting it.

The complaint (PDF) in the suit claims that the statute “is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate state interest.” It’s clear from the language that the attorneys are relying principally on two Supreme Court precedents, Department of Agriculture v. Moreno (1973) and Romer v. Evans (1996). Those cases, together, show that DOMA can’t withstand constitutional scrutiny. (Two Federal Court of Appeals judges have recently arrived at a similar analysis.)

Labels: DOMA, Romer v. Evans

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The legal advocacy group that successfully argued for sex-same marriage in Massachusetts intends to file suit here on Tuesday seeking some federal benefits for spouses in such marriages.

The target is the Defense of Marriage Act, passed by Congress in 1996, which prohibits the federal government from recognizing same-sex marriage. That law denies federal benefits, like Social Security survivors’ payments, to spouses in such marriages. ...

The suit, to be filed in Federal District Court in Boston, does not challenge a separate provision of the act that says states do not have to recognize same-sex marriages performed in other states. Information about the suit is posted on the advocacy group's web site.

Labels: DOMA, gay marriage

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