As some you know, today in 1967, the Supreme Court struck down state law prohibitions on interracial marriage, securing marriage equality for couples regardless of what state they resided in. Loving v. Virginiawas a landmark civil rights case, akin to Brown v. Board of Education, and came at a time when the overwhelming majority of Americans did not support these couples' right to marry one another.
The courage of the Court to buck national opinion on the matter is a stark contrast to the Obama Administration's cowardice in standing up for gay and lesbian equal rights.
In fact, the Administration's actions go beyond mere cowardice. They are despicable and hypocritical. Taking our money and labor in one moment, then stabbing us in the back the next.
I learned today that the DOJ has filed multiple briefs to dismiss lawsuits challenging the constitutionality of DOMA. In these briefs, the Obama Administration argues that DOMA is perfectly constitutional, there is no fundamental right to marriage, and that states should be allowed to restrict gay marriage just as they restrict marriage to minors and incest.
What is so troubling about these briefs is that they are so avoidable. First, the Obama DOJ could have simply argued that since DOMA is unconstitutional, it will decline to uphold the law. This would not be an unusual move as every president since Reagan has made these arguments, and the Obama DOJ has made similar arguments regarding the federal prohibition against medical marijuana licensing.
Second, even if the administration didn't want to draw the line in the sand over this issue here and now, it had the option to argue against the suits on technicalities. The DOJ could have raised "improper standing", or some other issue, and avoided taking sides on the matter. But that's not what Obama did.
Call it the Audacity of Nope.
Here's just a few of the highlights of the brief:
Comparing Gay Marraige to Incest and Underage Marriage:
The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State's policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").
Gay Marriage Isn't the Same as Interracial Marriage:
Finally, regardless of whether same-sex marriage is appropriate policy, under current legal precedent there is no constitutional right to it, and that precedent is binding on these parties and this Court. While the Supreme Court has held that the right to marry is "fundamental," Zablocki v. Redhail, 434 U.S. 374, 383-87, 98 S. Ct. 673, 54 L.Ed.2d 618 (1978), that right has not been held to
encompass the right to marry someone of the same sex. To the contrary, in Baker v. Nelson, the Supreme Court dismissed a claim that the Constitution provides a right to same-sex marriage for lack of a "substantial federal question." 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (Mem). In Baker, the Minnesota Supreme Court had rejected the contention that a State statute limiting marriage to one man and one woman violated federal due process and equal protection principles. The court found no "fundamental right" to same-sex marriage, 191 N.W.2d at 186-87, and concluded that the traditional definition of marriage effects no "invidious discrimination," and that the definition easily withstood rational-basis review. Id. at 187.
DOMA doesn't infringe on anyone's rights
In short, therefore, DOMA, understood for what it actually does, infringes on no one's rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny.
DOMA isn't Unconstitutional:
DOMA Is Consistent with Equal Protection and Due Process Principles Plaintiffs further allege that DOMA violates their rights under the Due Process Clause of the Fifth Amendment, including its equal protection component. DOMA, however, merely preserves for each State the authority to follow its own law and policy with respect to same-sex marriage for purposes of State law.
You can view a copy of the brief here, and you can visit Americablog where John Aravosis has been tirelessly covering this.
Read it yourself. It speaks more plainly about the administration's view of DOMA than any platitude in a speech
I'm afraid this is the end of road for Obama. My time and money will no longer go to helping him pursue his agenda.
UPDATE:
Some commenters believe that "it is a stretch" to say that the brief is comparing gay marriage to incest. Of course the brief wouldn't come out and say that flat-out, but in a legal sense, it does do exactly that. Consider the quote given above. The brief is arguing that the principle (allowing states to wiggle out of acknowledging other states marriage ) has been allowed when there have been conflicts in "public policy" between the two states. The only examples of public policy that ROSE to the level such that a state was free to disregard another's marriage license were incest and underage marriage. So to say that this principle can and should be invoked in the instance of gay marriage is to say that public policy differences between states regarding gay marriage are similar to public policy differences regarding incest and underage marriage. (Some commenter said that this was merely a case where the attorneys couldn't chose the context of the case law, but that ignores that the context determined the case law in the first place. The reason concerns over incest allow a state to disregard another's marriage is because concerns about incest are more substantial than say concerns about what type of paper a marriage license is printed on.)