(1) even if the Obama Admistration finds it politically necessary to defend the federal DOMA, its DOJ has by far exceeded the procedural grounds needed for dismissal;
(2) the DOJ's substantive arguments about due process, equal protection, and federalism are meritless;
(3) the "neutrality-in-federalism" argument is so transparently flawed that it reveals discriminatory intent, and may, without exagerration, be condemned as "absurd" or "insulting";
(4) Obama has fallen short of his stated commitment to repeal the federal DOMA, and has instead resorted to the same legal arguments of the Bush Administration.
Legal Commentary - 08/17/09 update
08/17/09 Proposition 8 and the Right to Marry:
The Department of Justice has filed a reply brief supporting its motion to dismiss.
06/30/09 Dissenting Jutice, law professor Darren Hutchinson:
In the second of his posts on the DOJ brief, Professor Hutchinson offers part of his legal analysis, and he expects to complete his analysis in another post.
06/25/09 LawDork, by attorney Chris Geidner:
Geidner refutes mischaracterization of the DOJ's defense of the federal DOMA, faulting John Aravosis of AmericaBlog for his claim that the Obama Administration has compared gay marriage to incest and pedophilia. "That John continues to write about 'incest' is, as I have stated since the brief was filed, overstating facts in order to enrage."
06/23/09 WordinEdgewise, by law professor John Culane:
[W]e weaken our credibility with spurious accusations, and I’ve been surprised by how little challenged has been the canard that the brief compares same-sex marriages to incest and pedophilia.
06/22/09 Dissenting Justice, by law professor Darren Hutchinson:
In the first of two posts, Professor Hutchinson discusses the politics of the DOJ brief:
Obama is engaging the exact same song and dance regarding DOMA. Although he maintains that he supports the repeal of this "hurtful" law, his administration has defended it as legally rational legislation. This position is patently absurd.
He expects to provide a legal analysis of the brief.
06/20/09 WordinEdgewise, by law professor John Culane:
On June 24th, Culhane will join Stacey Sobel in a debate on how the Obama Administration has addressed, or failed to address, LGBT issues. NPR’s Radio Times with Marty Moss-Coane will host the discussion, and whyy.org will post the mp3 file.
06/18/09 Balkinization Blog:
Linda McClain, an unidentified blogger at this constitutional blog, focuses on three points:
(1) the contrast between the brief’s support of DOMA and President Obama’s call for its repeal;
(2) the brief’s curious view of DOMA as representing a cautious and appropriate “neutrality” with respect to society’s still-evolving understandings of marriage; and
(3) the brief’s selection of the most narrow and conservative formulations of the relevant constitutional tests for defining fundamental rights and liberties.
06/17/09 Windy City Times:
Constitutional scholar Laurence Tribe acknowledged that he found much of the DOJ brief “quite baffling—gratuitously reaching for substantive arguments lacking in plausibility, simplistic to the point of being insulting, and insensitive to the force of the strongest arguments against DOMA's constitutionality as well as to the sensibilities of both gays and straights who find DOMA as abhorrent as I know President Obama does.”
06/13/09 LeonardLink, by New York University law professor Arthur Leonard:
The one that bothers me the most is the argument that there is no anti-gay motivation behind DOMA, merely a desire by Congress to pursue a policy of "neutrality" with respect to the issue of same-sex marriage in a situation where some states might allow such marriages while others would oppose them. This is absurd.
06/13/09 and 6/12/09 WordinEdgewise, by law professor John Culhane:
John Culhane faults the DOJ's defense of the federal DOMA for doing much more than was procedurally necessary to achieve dismissal, so much so that it appears to show an intention to "to set the course of judicial progress on gay rights back many years."
06/12/09 The Volokh Conspiracy, by law professor Dale Carpenter:
[T]he DOJ brief goes further than it needs to go at this point in the case by addressing the merits of the constitutional issues in the case, which attacks both DOMA Section 2 (interstate recognition) and DOMA Section 3 (federal recognition). There's a hodge-podge of claims in the case. Everything from the Full Faith & Credit Clause to freedom of speech is hurled at DOMA by the claimants.
06/12/09 hunter for justice, by law professor Nan Hunter:
Given the standing argument, there's a good chance that the court's ruling in Smelt may not even reach the merits of the constitutionality of DoMA. But you can bet that a similar version of this brief from DoJ, based on the same arguments, will be filed in two weeks in federal court in Boston.
Other Commentary:
See the links that Widener University law professor John Culhane provides in his 06/12/09 post.
06/16/09 NY Times editorial:
If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.
Advocacy Organizations - 06/16/09 update
06/16/09 National Organization for Women (source: ADF Alliance Alert):
The National Organization for Women calls on President Barack Obama and Attorney General Eric Holder to withdraw the U.S. Department of Justice brief filed in support of the Federal Defense of Marriage Act (DOMA) and to publicly renounce this discriminatory law. The brief was reportedly written by Bush administration holdovers, and if that is the case, this administration must immediately make it clear that President Obama does not support this position.
06/15/09 Human Rights Campaign:
As a matter of constitutional law, some of this brief does not even make sense:
DOMA does not discriminate against homosexuals in the provision of federal benefits…. Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.
In other words, DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals.
A prominent gay-rights organization, long supportive of President Barack Obama, sent him a scathing letter Monday to protest the administration's recent legal backing of the Defense of Marriage Act.
06/12/09 Christian Post (source: ADF Alliance Alert):
Alliance Defense Fund attorney Brian Raum plans to join in the motion. "We're confident that the arguments the U.S. government is making are correct," Raum told The Christian Post. "Hopefully, the court will dismiss [the case]."
06/12/09 Joint Statement By LGBT and Legal Advocacy Groups:We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states.
06/12/09 Equality California:
This is a statement by Equality California (EQCA) Executive Director Geoff Kors. Kors does not explain why EQCA objects to the legal arguments, except to note that the DOJ has tried in its brief to justify "discrimination in government benefits against same-sex couples."
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