Saturday, January 15, 2011

Obama DoJ and the DOMA appeal

The president may coyly suggest that his feelings about marriage equality are "evolving", but his DoJ is still claiming rational government interest in DOMA, the so called defense of marriage act. They are appealing the Massachusetts federal district court that found it unconstitutional to deny legally married Massachusetts couples the federal benefits of marriage.

As Politico notes:
"There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens," said Equality Matters chief Richard Socarides in an e-mail. "And that is unacceptable."

From Chris Geidner at Poliglot:
Despite that "ongoing dialogue," the government asserts three reasons to justify DOMA's continued validity:

1. Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2. Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3. Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

Although each is slightly different, these three "rationales" do read like different shades of the same argument, which is more or less that DOMA made sense -- or, is rational -- because the states hadn't reached a uniform decision.

BUT as I've noted before, the DoJ basically has to appeal this if it is to have any bearing outside of Massachusetts. And there are some interesting statements in the brief (see the original for the references)

This one is interesting because it undercuts the primary argument being used by the defenders of Prop8: gays can't procreate. The government is conceding that this argument is not rational.
[T]he government does not contend that DOMA serves a governmental interest in “responsible procreation and child- rearing.” As the government explained in district court, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. The district court nonetheless addressed that rationale, and certain other rationales the government did not advance, and rejected them as irrational. The government does not challenge those specific aspects of the district court ruling on appeal.

This one is an admission that times are changing, and the way things are is harmful to gays and lesbians.
When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving, and as is well-established, the “science of government . . . is the science of experiment.” Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society.

This one points out the complications without DOMA.
Without DOMA, federal benefits would vary for same-sex couples from state to state. Couples in a state that allowed same-sex couples to marry would receive certain federal benefits, while couples in a state that did not authorize such marriages would not. Further, several states have created a civil union or domestic partnership regime that provides, under state law, virtually all of the same rights and benefits as marriage. Under current federal law those partnerships – whether same-sex or opposite-sex – do not qualify as marriages. Given the differing treatment in the states of committed relationships between same-sex couples, Congress could have rationally concluded that a uniform federal definition was warranted. And while it may be preferable as a policy matter for Congress to have provided the same benefits to all married couples, the uniform path that Congress chose was permissible….
THe argument being that it's better to just lump the gays into disadvantage than try to figure out the inconsistencies from state to state.

Of course, the lunacy of this is notable in California, where the brief argues that it wouldn't be fair to have married gay couples have benefits that are no longer available to other gay couples.
….a uniform federal definition eliminates not only variations among the states, but variation in federal benefits for same-sex couples within the same state. As explained above, in California, same-sex couples married between June 2008 and November 2008 remain in recognized marriages in that state, but no more such marriages may be performed. Thus same-sex couples formally united during that period would benefit from federal laws regarding marriages, but other same-sex couples seeking to marry in the state would not. p.67
Stay tuned, we'll keep you posted.

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