By L. K. Regan
Published Sep 18, 2009

The Obama Justice Department has requested that a Boston federal court dismiss a lawsuit seeking to challenge the federal Defense of Marriage Act (DOMA). While acknowledging that DOMA discriminates against gay couples, the administration argues that it is also "constitutionally permissible." This is the second time the Department has vigorously defended DOMA in court, intensifying concerns amongst gay activists about the seriousness of the administration's commitment to gay rights.

Seven gay couples and three widowers from gay marriages filed suit against the federal government after legally marrying in Massachusetts. Their suit claims that DOMA violates the constitution's promise of equal protection under the law. DOMA is a 1996 law preventing any branch of the federal government from treating as equivalent to marriage anything other than the union of a man and a woman. In other words, no gay marriages, and no civil unions, will be afforded the rights of heterosexual marriages within the federal government's field of influence. DOMA prevents joint filing of tax returns, claims of legal immigration status, and access for gay partners of government employees to benefits such as pensions and health insurance.

DOMA was created as a defensive measure when Hawaii looked poised to be the first state to legalize gay marriage; Congress wanted to prevent other states from being forced to recognize those unions. But in fact, Massachusetts was the first state to legalize gay marriage, followed by five other states (none of them Hawaii). Now the gay couples married there are prepared to say that the absence of federal marriage benefits is costing them—literally. One pair of plaintiffs in the lawsuit, Beatrice Hernandez and Melba Abreu, claim that the fact that they cannot file a joint tax return cost them an additional $20,000 over three years of their five-year marriage. "It really is separate and unequal treatment," Hernandez told the AP. "When we were able to marry in 2004, we didn't receive a different marriage certificate. We received one that was equal for all citizens here in Massachusetts."

In principle, the Justice Department says that it agrees that DOMA is discriminatory toward couples like Hernandez and Abreu. But, their court documents argue, Congress can take a wait-and-see approach toward new forms of marriage, since there is no fundamental constitutional right to the material benefits of marriage. "Congress is therefore permitted to provide benefits only to those who have historically been permitted to marry," the filing says, "without extending the same benefit to those only recently permitted to do so." In their own logic, however, there seems to be an undefined expiration date on the viability of this policy: "Congress may subsequently decide to extend federal benefits to same-sex marriages, and this Administration believes that Congress should do so. But its decision not to do so to this point is not irrational or unconstitutional."

It is the practice of the Justice Department to defend the laws on the books, regardless of the opinion of the President and his administration. Earlier this year, they offered a similar defense of DOMA in the face of equal protection-based legal challenges in California. Yet this kind of legal reasoning begs the question: if not now, when? Precisely how much discrimination is the government's legal arm prepared to tolerate, and even defend? And at what point will the administration be forced to acknowledge that rights that are not equal are not actually rights—they are privileges unfairly granted to some and withheld from others?

psferrari wrote:

Er, Um...
THE KING HAS NO CLOTHES!!!!!

This guy USED US to get elected, and hasn't don SH!T for us since!

He has NO INTENTION on doing away with DOMA. It is not politically expedient.
(For those who aren't capable of critical thinking, that means it will cost him votes from the sheeple he conned into electing him, and he, and OUR party need the votes.)

So, HE WILL CONTINUE TO THROW US UNDER THE BUS, just like everybody else has. This will continue until WE STAND UP and DO SOMETHING ABOUT IT!

Ever get a mouthful of spunk and it tastes too bad to swallow? That's Obama.
It was really hot and sexy til its in your mouth. Now it tastes so bad nobody wants to swallow, but it would OFFEND to spit it out!

(How's THAT for an analogy?) LOL

Sep 26 3:41 AM

SteveS wrote:

what devon said. the administration has a false choice: 1) abdicate its constitutional duty to defend the laws passed by congress (however stupid) and open itself to attacks of "selective, politically biased enforcement", or 2) do what they're doing and try just hard enough to defend the law until congress does what it's supposed to and repeals the law. i want federal recognition as much as the next guy, but unfortunately the law doesn't work that way and, pragmatically, it's better to have a president that respects the rule of law than one who ignores them at a whim (i.e. bush). option 3, we draw up a new constitution, but that would take time away from the gym.

Sep 24 10:06 PM

kantgitrite101 wrote:

All ya'll should've voted Hillary instead of Barack.

No guarantee she would've moved sooner, but I doubt her administration would've defended DOMA either.

Sep 23 10:03 PM

Devon_Fury wrote:

The DoJ really does want to overturn DOMA, but they need a case with the most airtight of standings to come along before they can overturn it for good otherwise you are looking at a Roe V Wade scenario where we constantly worry about what a new Justice will bring to the bench. Basically they are excellent lawyers who know the law and the system well enough to properly defend laws on the books and should do so as a matter of obligation- until a better lawyer can show a better arguement that they cannot tackle constitutionally. Either we force the legislative branch to capitulate and pass comprehensive legislation that itself carries enough political capital and staying power- which is unlikely- or we hit the conservative right with a judicial case that will remove any chance of resurrecting DOMA, DODT, or any other form of discrimination against human sexuality and gender identity.

I for one will still march in October and continue to pester my elected officials whenever possible until something gives.

Sep 22 9:25 PM

Anto wrote:

"But, their court documents argue, Congress can take a wait-and-see approach toward new forms of marriage, since there is no fundamental constitutional right to the material benefits of marriage"

Unless it's a straight interracial marriage apparently.

Sep 21 9:16 AM

wisco wrote:

WOW, thanks Obama. I really tried to dismiss all of the nay-sayers who said that you would turn out to be just like every other politician--only interested in your own well-being and personal gain. As a 25-year-old poor college student, I made sacrifices and scraped together money to donate to your campaign with the hopes of bringing change to the gay community. Alas, eight months later, not a glimpse of hope for myself and others looking for equal federal benefits for gay couples.

I am currently in a committed 5-year relationship with an illegal immigrant (who fled his country in fear of homosexual persecution), and though we are both now college-educated and would love to be married, doing so would do nothing to provide him with permanent resident status by way of marriage. You think that equal protection doesn't apply in this case because there is no guaranteed right to marriage, but what recourse do we have for him to become a resident and ultimately a citizen? In all reality, there is none. I guess you would reply that we don't have a right to be happy and loved, either.

I guess writers of the Declaration of Independence were wrong when they said we have the inalienable rights to life, liberty and the pursuit of happiness. My man and I now are separated by 500 miles as I have moved to further my education; he was unable to join me due to fear of not finding employment in a new city and of officials learning of his illegal status. If I were able to file for permanent residency, none of this would happen. But no, thanks to current and past administrations, that will not happen. I now live alone, only able to communicate by phone, and love and miss my man dearly. I fear that our separation will lead to depression or that being apart for so long will take its toll. I hope that our relationship will endure such difficult times. The sadness that we feel in our hearts every waking day is immense.
I'm not concerned with being allowed to be 'married'

Sep 21 1:53 AM

TheFreeman wrote:

Dear Obama: YOU LIE!

Sep 20 11:20 PM

Sedative wrote:

Blah!

Sep 20 4:29 PM

KyleAD wrote:

Article IV, Section 1- Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
--
Congress only has the right to determine proof... they definitely violated the ninth and tenth amendments.

Sep 19 11:32 PM

ben09 wrote:

@ryanreborn, you must take political promises with a grain of salt. I think Obama is making good enough progress for his short time in office, he has a long list of changes, and it will take time to implement.
I am certain that Obama will do more for the benefit of gay people than McCain ever would...
Also keep in mind that we don't see the full effect of a presidency until long after the term of office is over.

Sep 19 8:00 PM

DCEric wrote:

I'm still glad that I voted O, instead of McC. With McCain, there would be no chance of getting the administration on our side, with Obama there was a chance.

Sep 19 2:36 PM

Ryan_Andrew wrote:

I still stand by the fact that I made the right decision to support john mccain instead of O. I just couldnt find myself to support someone that I felt would turn out exactly like this. I voted for Hillary in the primary and EVERYTHING so far that she called O out on has been right on the money. Go figure. Get ready for another 8 years of a republican. And god only knows how crazy/stupid this one will be after O. And if its Palin...=(

Sep 19 10:44 AM

RyanReBoRn wrote:

Obama is really falling in my eyes... after all that campaigning and after all the promises he made it turns out most of it was bull***t. You can't say you understand a law is discriminatory and then turn around and defend that same law from being challenged in court.

What a hypocrite.

Sep 19 8:14 AM

Anto wrote:

This is Obama's fierce advocacy for gay Americans hard at work!

Sep 19 5:53 AM

Mystic_Man wrote:

KICK HIM OUT....

Sep 19 4:06 AM

Hydroxycunt wrote:

^_^ Obama's approval rating is just going to continue dropping... So much for bringing change/hope.

Sep 19 3:37 AM

Epiphany1882 wrote:

I get it, but it makes me a bit more uncomfy. :/

Sep 19 3:28 AM