Friday, June 12, 2009

Obama's DoJ defends DOMA

We've been talking for sometime about whether Obama will do anything about DOMA.

Well, his DOJ will actively SUPPORT it. The DoJ has filed a brief defending DOMA in California, with every right-wing anti-gay talking point you would expect from a Bush Administration.

The SF Chronicle reports
This case does not call upon the Court to pass judgment ... on the legal or moral right of same-sex couples, such as plaintiffs here, to be married," the motion states. "Plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions.

"It's a different case from a recent federal lawsuit by two unmarried gay couples in California who claim a civil right to marry under the U.S. Constitution.

The government said Smelt and Hammer seek a ruling on "whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by states that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits.

"Under the law binding on this Court, the answer to these questions must be no," the motion states.

Americablog quotes the brief, which cites incest as a justification for denying marriage recognition. A big part of it claims DOMA is good for the federal budget, because if you deprive people of rights, it's cheaper. Now remember, this is OBAMA'S Department of Justice.
Likewise, Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage. In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs' rights, even if same-sex marriage were accepted as a fundamental right under the Constitution.

The whole brief is here. (This is not the high-profile case recently filed by Boies and Olson. This is an earlier case.)

I posted this originally at Daily Kos, where many commenters pointed out that the DoJ has to defend a legal statute. After all, one of the complaints about the Bush administration was their politicization of the DoJ, which is supposed to function independently. DOMA is legal, like it or not, until the spineless Congresscritters repeal it. But the language in the brief is incendiary. My marriage is not to be recognized for the same reason incestuous marriages are not recognized? It's vastly insulting. And there is a strong defense of DOMA for purely BUDGETARY reasons.

Which leads me back to a diary I wrote a few days ago. Is Obama really moving slowly on gay rights, or is he being very subtle? Is comparing our marriages to incest and supporting DOMA by citing the budget meant to be so ridiculous an argument that any sane person would dismiss it? I wish I knew.

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