The NYTimes on the indefendable DOMA

February 14, 2011 at 11:31 am 26 comments

By Adam Bink

Amazing NYTimes editorial yesterday (bolding mine):

In Defense of Marriage, for All

The 1996 Defense of Marriage Act is indefensible — officially sanctioned discrimination against one group of Americans imposed during an election year. President Obama seems to know that, or at least he has called on Congress to repeal it. So why do his government’s lawyers continue to defend the act in court?

The law, signed by President Bill Clinton, denies married same-sex couples the federal benefits granted to other married couples, including Social Security survivor payments and the right to file joint tax returns. When December’s repeal of the noxious “don’t ask, don’t tell” law goes into effect, gay, lesbian and bisexual Americans will be able to serve openly in the military but may not be entitled to on-base housing or a spouse’s burial in a national cemetery.

Attorney General Eric Holder and Justice Department lawyers have sought to distance the administration from Congress’s justifications for the marriage act, one of which was to “encourage responsible procreation.”

But just last month, the department appealed two rulings by Joseph Tauro, a federal trial judge in Massachusetts, who found that the law’s denial of benefits to married same-sex couples could not pass constitutional muster. We did not agree with some of the judge’s reasoning. He said the marriage act exceeded Congress’s powers and infringed on the state’s right to regulate marriage — an approach that could undermine many of the biggest federal social programs, including the new health care law.

But the department’s appellate brief also recycled the flimsy argument that the law had a plausible purpose in trying to maintain the federal status quo while states debated the issue of same-sex marriage. This argument was peculiar since the law overturned the federal status quo, which was to recognize all legal marriages.

Two new lawsuits, filed in Connecticut and New York, challenging the Defense of Marriage Act now offer the president a chance to put the government on the side of justice. We urge him to seize it when the administration files its response, which is due by March 11. The executive branch’s duty to defend federal laws is not inviolate. This one’s affront to equal protection is egregious.

[…]

On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry.

By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so. If conservatives in Congress want to enter the case to argue otherwise, so be it.

A hard test is right. This law advances no compelling interest.

Entry filed under: Marriage equality.

Whither people power, and whether it should always exist Happy Valentine’s Day from Maggie Gallagher

26 Comments Add your own

  • 1. Peterplumber  |  February 14, 2011 at 11:32 am

    ♂♂

    Reply
    • 2. Ann S.  |  February 14, 2011 at 11:35 am

      §

      Reply
      • 3. Kathleen  |  February 14, 2011 at 11:37 am

        Reply
        • 4. LCH  |  February 14, 2011 at 12:05 pm

          (♀♀)=(♂♂)=(♀♂)=∑♡

          Reply
          • 5. Ronnie  |  February 14, 2011 at 12:07 pm

            =

            <3…Ronnie

        • 6. Ed Cortes  |  February 14, 2011 at 12:27 pm

          √, too

          Reply
          • 7. Straight for Equality  |  February 14, 2011 at 12:34 pm

          • 8. JonT  |  February 14, 2011 at 1:52 pm

            Please increase SMTP packet count to my firewall’s TCP port 25.

            Thank you.

          • 9. Richard A. Jernigan  |  February 14, 2011 at 2:54 pm

            @ Jon T: Mazel Tov! You did it again! Yes, you got me laughing!

  • 10. John  |  February 14, 2011 at 11:34 am

    sub’n

    Reply
  • 11. Richard A. Jernigan  |  February 14, 2011 at 11:44 am

    Just so DOMA gets overturned all the way up so that it is wiped out in all fifty states, and thereby empowers the striking down of all state-level DOMA’s.

    Reply
  • 12. AB  |  February 14, 2011 at 12:07 pm

    Very well written piece. I wonder what the likelihood is that the administration will read the piece and take it to heart.
    On another topic, Indiana may vote on their constitutional ban as early as today. The protests for today have gotten quite a lot of attention (which is nice), and Maryland and Rhode Island should be voting on their legislation soon. Does anyone know when that will be? Also, I can’t seem to find anything on the CA Supreme Court on the Ninth Circuit question. Has anyone heard anything on that? (Kathleen?)

    Reply
    • 13. Kathleen  |  February 14, 2011 at 12:44 pm

      No word yet. I’m thinking maybe following their conference on Wed.

      Reply
  • […] This post was mentioned on Twitter by Tony Sidaway, Cathy Johansen. Cathy Johansen said: RT @EqualityOnTrial: The NYTimes on the indefendable DOMA http://wp.me/pLuL9-2cX #doma #uafa #enda #lgbt […]

    Reply
  • 15. Maria Lantz  |  February 14, 2011 at 12:37 pm

    Watching

    Reply
  • 16. Alan E.  |  February 14, 2011 at 12:50 pm

    But, but, but responsible procreation!*

    *not including those who are infertile or just don’t want to have kids.

    Reply
  • 18. Bob  |  February 14, 2011 at 1:11 pm

    woot to the lawsuits filed to challenge DOMA,,, great that it got some ink in the papers,,,, it’s the next leg of the stool that needs to be kicked out so discrimination ends,,,,,

    think this will take some joint effort, nationwide,,, make a noise about the United States human rights infractions,,,, speak up act up get ATTENTION our new cry END DOMA NOW!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    Reply
  • 19. Straight Ally #3008  |  February 14, 2011 at 1:37 pm

    You have to love the irony of Judge Tauro using the Tenth Amendment as an argument against DOMA – illustrates the hypocrisy of wanting smaller government unless, of course, it marginalizes those pesky gays.

    Reply
    • 20. John  |  February 14, 2011 at 1:51 pm

      Yes, true conservatism requires:

      1) End government regulation of the environment and corporations, as abusing others to get rich is tje God Given Right of the rich! God wouldn’t have given us a planet if He didn’t want us to destroy it! Cut taxes and cut social programs. This is important so that those who aren’t rich stay that way and so that people who already have enough money can get more. Society needs an underclass, after all.

      2) Increase military spending. Sometimes it isn’t enough to hurt your own poor people. Besides, it’s much more satisfying to hurt people with a big explosion. In addition, you can sell big explosions.

      3) Regulating the bedroom is essential, as doing so gives the people in power “plausible deniability” about what goes on in their own bedroom (“I wouldn’t regulate the things *I* do…”).

      The ironic thing is that there isn’t many rich Tea Party people. They actually believe somehow that giving the rich people more of their money is a good thing. And they think “small government” means “more centralized defense spending and more regulation of people’s bedrooms.” They are a strange breed indeed.

      I think part of that is that you wouldn’t be able to get even ignorant people to vote for you if your party platform was, “We want you to have less, so the rich can have more. Please vote for us.” So you need to tie into xenophobic feelings and religion based in ignorance, if you want to get elected.

      Reply
  • 21. Felyx  |  February 14, 2011 at 3:37 pm

    I want to really express my appreciation for the fact that this site covers many of the cases that effect us all. I know this site is dedicated to the Prop 8 trial but that is not the only trial that will create the change that we need. There are many other cases out there and there are precious few sites that cover them.

    Once again, thank you to the community for sharing these things here and posting this news for us all.

    Thank you to the site itself for being here.

    Felyx

    PS: It would be nice if you had a sidebar that linked to the information and scribd files regarding these other cases… just a though. Good night from Russia.

    Reply
  • 22. Sagesse  |  February 14, 2011 at 4:25 pm

    “On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry.

    By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so.”

    The NYT is saying LGBT is a suspect class, and wants the DOJ to say so. Only the Supreme Court can designate a suspect class, and there seems to be real doubt this Court will do that. The NYT logic is flawless, but they need to understand constitutional law. What the government can do is repeal laws like DADT and DOMA.

    Reply
    • 23. Felyx  |  February 14, 2011 at 4:29 pm

      Maybe if the American people start proclaiming in unison that we are a suspect class the SC will take notice. Kudos to NYT for saying it!

      Reply
  • 24. Bob  |  February 14, 2011 at 5:25 pm

    I still think if the headline read CIVIL RIGHTS FOR ALL,, it would get more to the point, and more people would identify , in terms of their own rights,,, not everyone wants to get married ,,, so that word can be devisive , even in our own , suspect class,,, and suspect class is I know a legal phrase but we really are a community,,, other minorities can identfy with community,,,,,

    we’ve come a long way since the prop8 trial,, there’s been lots of talk and changing of hearts and minds,,, more people are making the switch to understanding the battle for what it is,,,,

    every gov’t official has been alerted by the actions by the people in the middle east, change is happening,,,, even republicans must see the perils of witholding rights from citizens,,, End human rights infractions NOW,,,

    maybe it’s not us who need to support the LGBT community in Egypt,, perhaps they need to draft a letter to Obama, and reiterate what he said to Mubark,,, the change must begin NOW, and you must respect the HUMAN RIGHTS of your citizens,,,,,,,,,,

    Reply
    • 25. Lar  |  February 15, 2011 at 1:15 pm

      Bob, keep in mind a lot of republicans walk around blinders on and don’t really see anything they don’t want to.

      Reply
  • 26. Rhie  |  February 14, 2011 at 8:11 pm

    WAtching

    Reply

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