Box Turtle Bulletin

The DOJ’s buddies – Part I

There is an old saying that you are known by the company you keep. So the Obama Administration’s Department of Justice must be mortified by who has filed amicus briefs in support of their defense of the federal Defense of Marriage Act.

In July, 2010, First Circuit Federal Court Judge Joseph Tauro ruled that the federal Defense of Marriage Act violated the constitutional rights of states to define marriage and of the rights of same-sex couples to have their legal marriages recognized. This ruling did not touch on rights outside of Massachusetts.

The Department of Justice appealed that decision and are arguing for the constitutionality of Congress to deny rights based on sexual orientation. They are joined by a Who’s Who of anti-gay activists such as National Organization for Marriage, NARTH and the Eagle Forum.

Considering that the administration officially wishes to repeal DOMA – or at least that portion found unconstitutional – the decision to defend DOMA is one of legal principle (though I’m not convinced of its necessity) that then of ideology. So, sensing that no one from the DOJ is likely to stand on the table and scream, “they’re filthy sinners full of perversion and disease who are defying God and should be punished,” they have plenty of friends to make that point for them.

GLAD, who is arguing the Gill case on the side of equality, had collected these amicus briefs on their website for your perusal and delight. But, on the off chance that you may not find defense of discrimination and heterosexual superiority to be delightful – or that you may not wish to lose your lunch – I’ll give you a synopsis and save you the effort.

The National Organization for Marriage was the first out of the gate. In an argument that surely would have impressed George Orwell, they declare that allowing the states to define marriage – as they have always done – would be a violation of the Tenth Amendment.

Whatever the origin of the misunderstanding of the scope of the Tenth Amendment, the court below turned the Tenth Amendment on its head. Rather than protecting against federal usurpation of powers reserved to the states, the ruling below would allow each state to impose its own definition of marriage on the federal government in a sort of reverse Supremacy Clause.

Well, I’ll say that at least it is a novel argument.

They ramble a bit about censuses and other matters under federal definition, but basically they call for a newspeak approach to federalism whereby it is best achieved by centralized federal control. Listing all of the ways in which the federal government violates the rights of same-sex couples, they present this as evidence of the government’s right to do so. They rant about bigamy and Think of the Children. This was not their best effort.

The certified hate group, Family Research Council, was up next. Nothing new or interesting here, just the same ol’ “no strict scrutiny required” and “them homos in’t got no rights”. But I’ll give Tony and crew props for perhaps the single most meaningless sentence ever entered into public record:

And no court has ever held that marriage, traditionally understood, extends to same-sex couples. [emphasis in original]

George I. Goverman, “a citizen and resident of Massachusetts and a member of the bar of the Commonwealth since 1970”, chimed in to bring up Baker v. Nelson. Perhaps he intended to file his amicus with Perry, but got confused.

He also has a unique presentation style; his argument is in Times New Roman but for case references he appears to have selected an Arial italics font. They are also different font size and don’t quite line up, leaving a rather jarring effect.

But having read countless “procreative activity” amici during Perry, this peculiar presentation was not quite enough to keep me interested. I was, however, amused that he appealed to George Orwell at his conclusion. I guess he didn’t read NOM’s paper.

Judge Roy Moore (of Ten Commandments fame) was here with his Foundation for Moral Law to “defend the unalienable right to acknowledge God as the moral foundation of our laws.”

After he informed the court that “the views of the American people as a whole from the beginning of American history through the present, have held that homosexual conduct has always been and continues to be immoral and should not be protected or sanctioned by law,” I assume that the judge will just toss this one on the pile marked “raging loons.” It seems that Moore hasn’t read a poll or opened a newspaper in the past decade or so.

But I hope the court does read Moore’s rantings. For this paragraph, if for no other:

From Biblical law and other ancient law, through English and American common law and organic law, to recent times, homosexual conduct has been abhorred and opposed; the idea of a “marriage” based on such conduct never even entered the legal mind until very recent times. Congress’s passage of the federal definition of marriage in DOMA had the force of that history behind it and several present-day interests that were asserted when DOMA was enacted in 1996, such as an interest in defending marriage and an interest in defending traditional notions of morality.

The Supreme Court has found that defending “traditional notions of morality” is not an adequate reason for enacting law. In fact, to do so would be to invite judicial rejection.

So it is definitely to our advantage to remind the court that the sole purpose of anti-gay laws – including anti-marriage laws – is based in a desire on the part of one segment of society to impose their religious beliefs upon others. It also helps that Moore quotes the Bible about abominations and such and makes a bestiality comparison. I’m surprised he didn’t channel Jonathan Edwards.

Thank you, thank you, thank you, Judge Moore for writing in and making it perfectly clear that opposition to same-sex marriage is based in religious doctrine, antipathy to gay people, and – at least in your case – baldfaced bigotry.

Obama Administration appeals DOMA ruling

From NPR:

The U.S. Department of Justice on Tuesday defended the federal law defining marriage as between a man and a woman by appealing two rulings in Massachusetts by a judge who called the law unconstitutional for denying federal benefits to gay married couples.

In two separate cases, U.S. District Judge Joseph Tauro in July ruled the federal Defense of Marriage Act, known as DOMA, is unconstitutional because it interferes with a state’s right to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The notice of appeal filed Tuesday did not spell out any arguments in support of the law. The appeals eventually will be heard by the 1st U.S. Circuit Court of Appeals in Boston.

According to GLAD, briefs will be filed before First Circuit Court of Appeals probably between now and next spring, with oral arguments likely to be heard in the fall of 2011.

The Department of Justice had an obligation to defend the law. But there is no legal obligation to appeal the rulings of the court.

Fierce advocate in action.

Why the Obama Administration Must Appeal DOMA Rulings

I know. That headline is heresy. But there’s the thing: the two rulings declaring the “Defense of Marriage Act” unconstitutional only apply to Massachusetts. It’s a great win for LGBT couples living in the Bay State, but it’s meaningless everywhere else.

As it stands, there are only three ways to get rid of DOMA nationwide. Barring appeals by Obama’s Department of Justice, the first option is to get another forty-nine sets of similar rulings by federal judges in forty-nine more states. While it’s true that these Massachusetts rulings would serve as a precedent for subsequent rulings by other federal judges, those judges aren’t bound by them in the same way they would be a Supreme Court ruling. So the practical message the Obama administration would be sending if they chose not to appeal this case would be, “Congratulations, now go win 49 more. (And keep going if you want D.C., Puerto Rico and the other territories.)” I just don’t see that happening.

The second option is to overturn DOMA in Congress. I think that would be the preferable solution, but we know how controversial that would be. As archaic as everyone thought anti-sodomy laws were, they were still in force in 14 states just seven years ago before Lawrence v. Texas finally struck them down. Hate crimes legislation and repealing “Don’t Ask, Don’t Tell” are also non-controversial according to public opinion polls, but we still see how difficult that has proven to be in the most LGBT-friendly Congress in history. We hardly need to remind ourselves that same-sex marriage is in a whole different league of contentiousness, as every single public referendum on the issue has painfully shown us time and time again. With the next Congress likely to be much more hostile to LGBT issues as this Congress, I’ve got lottery tickets with better odds than Congress repealing DOMA.

So that leaves the U.S. Supreme Court as the best option. Not a great option, but the best one. The path is still tricky, and it’s unclear how a majority might be put together to support these decisions. But these decisions are the marker against which future appeals will be decided, and that will happen only if those appeals are heard. The next step is the 1st Court of Appeals, then the Supreme Court, with the hope that the Supreme Court agrees to hear the cases should the Appeals Court overturn the lower court’s decisions. This could be Bowers vs. Harwick all over again, or it could be another Lawrence. But wherever it goes, the train has left the station. We’re either on board or not.

Update (Jul 11): Gay and Lesbian Advocates and Defenders (GLAD), the folks behind Gill v OPM has released a thorough set of FAQs (PDF: 264KB/8 pages) answering many of the questions asked by BTB readers in comments.

Defense of Marriage Act Declared Unconstitutional

We have just received word that a Federal Court Judge has ruled the Defense of Marriage Act unconstitutional.

According to a press release issued by Gay & Lesbian Advocates & Defenders (GLAD):

This afternoon, a federal court judge issued a decision in Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders’ lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA).

The judge also issued a decision in Commonwealth v. United States Department of Health and Human Services, Attorney General Martha Coakley’s lawsuit challenging Section 3 of DOMA, which is separate from GLAD’s lawsuit and based on a different legal theory.

 One Tweet has it that GLAD’s case was decided on “equal protection principles.” Of course, we eagerly await the text of the ruling itself, which I presume will not be in the form of thousands of tweets.

This is an important first step in the long slog to the Supreme Court. Given that the U.S. Justice Department is likely to appeal the ruling, it’s unclear what immediate affect this ruling might have.

Update 1: Bay Windows has more information:

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

Both cases were argued separately last May, although both decisions were handed down simultaneously today. Bay Windows notes that this is an extremely quick turn for a decision like this.

Update 2: Reporter Rex Wocknoer sent out this key snippet from the Commonwealth vs US HHS decision:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

Update2  3 and 4: The Gill decision has been uploaded here. The Commonwealth decision is here. I’m pretty busy right now, so feel free to discuss them in the comments.

DOJ Reportedly To Meet With LGBT Groups

In the wake of the nationwide anger being expressed over the Justice Department’s insulting court brief defending the so-called “Defense of Marriage Act,” the Obama administration has begun to react with some very limited, short term steps to try to assuage that anger. On Wednesday, President Barack Obama signed a Presidential Memorandum directing federal agencies to adopt policies to treat their LGBT employees on equal footing with their other employees. (That memorandum, however, doesn’t include key employment benefits like health care or retirement, which are prohibited by federal law.) The White House has also directed the Census Bureau to determine changes in its procedures to allow same-sex unions to be counted.

Both steps however are very tiny steps, and they have done little to quell the outrage over the DOJ’s brief. That anger continues to threaten the Democratic National Committee’s LGBT fundraiser slated for next week.

Now The Plum Line blog is reporting that the Justice Department has scheduled a private meeting with major LGBT groups for next week:

Tracy Russo, a spokesperson for Justice, confirmed the meeting to me, after I posted below that top gay rights lawyers were miffed that administration lawyers had rebuffed their requests to meet and discuss ongoing litigation involving DOMA.

At the meeting — which hasn\’t been announced and is expected to include leading gay rights groups like GLAD and Lambda Legal — both sides are expected to hash out how to proceed with pending DOMA cases.

The Justice Department is due to file another brief by June 29 in a lawsuit filed by Gay and Lesbian Advocates and Defenders in Boston\’s Federal District Court on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. That DOMA challenge, Gill v. Office of Personel Management is considered a much stronger suit than Smelt v. United States, which the recent controversial DOJ brief addressed.

I don’t know whether LGBT groups would be permitted to weigh in on Gill v. OPM specifically. But if this meeting really does happen, it does appear to be a sign that the Justice Department may try to head off the kind of missteps it made with its Smelt v. US filing.

And if that’s the case, then it appears that the Obama Administration may have begun to recover its sense of hearing. But the only lesson I think we can safely draw from all of this is to keep shouting.

Barney Frank Was Against The DOMA Brief Before He Was For It

There are three openly gay representatives in the U.S. Congress. As of Tuesday, we saw statements from two of the three — Rep. Tammy Baldwin (D-WI) and Rep. Jared Polis (D-CO) condemning the Justice Department’s brief defending the “Defense of Marriage Act,” and we wondered when Barney Frank (D-MA) was going to issue an official statement.

Yesterday, it appeared that Frank was going to add his voice in condemnation to the brief as well. He told the Boston Herald:

“I think the administration made a big mistake. The wording they used was inappropriate,” Frank (D-Newton) said of a brief filed by Obama\’s Department of Justice that supported the Defense of Marriage Act. … “I\’ve been in touch with the White House and I\’m hoping the president will make clear these were not his views,” Frank said.

But by the time Frank got around to releasing an official statement, he had a change of heart:

“When I was called by a newspaper reporter for reaction to the administration\’s brief defending the constitutionality of the Defense of Marriage Act, I made the mistake of relying on other people\’s oral descriptions to me of what had been in the brief, rather than reading it first.  It is a lesson to me that I should not give in to press insistence that I comment before I have had a chance fully to inform myself on the subject at hand.”

“Now that I have read the brief, I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric.  There are some cases where I wish they had been more explicit in disavowing their view that certain arguments were correct, and to make it clear that they were talking not about their own views of these issues, but rather what was appropriate in a constitutional case with a rational basis standard – which is the one that now prevails in the federal courts, although I think it should be upgraded.”

This, of course, is the same brief which suggests that DOMA doesn’t discriminate against gay people because gay people are free to marry anyone they want, as long as its someone of the opposite sex. And besides, the brief continues, if it did discriminate, that’s okay too. Maybe Congress just wanted to save a few bucks in Social Security benefits, and that’s a good enough reason right there — never mind that we pay the same taxes into the fund just like everyone else.

But then, Barny Frank also doesn’t want anyone to spoil the DNC fundraiser for next week. “There are a lot of people who aren\’t boycotting. I think it\’s a mistake to deny money to the DNC,” he told the Boston Herald.

But Frank does point to another lawsuit filed by Gay and Lesbian Advocates and Defenders in Boston’s Federal District Court behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. That GLAD lawsuit, Gill v. Office of Personnel Management challenges only Section Three of DOMA, the section which bars the federal government from recongizing same-sex marriages or providing benefits to same-sex couples

Gill v. OPM is considered a much stronger suit than Smelt v. United States, which the recent DOJ brief addresssed. The Justice Department is required to answer GLAD’s lawsuit by June 29. We’ll be watching that one very closely.

Meanwhile, Frank, along with three other Democrats and four Republicans will introduce a revised Employment Non-Discrimination Act next week in Congress. Unlike last year’s bill, this one includes transgender people in its coverage.