Debunking conservative talking points on DOMA

Equality Matters gives us a useful resource for the inevitable lies about what Obama's DOMA decision really means. Please visit their page for the details including quotes and citations, but here are some highlights.

The Talking Point: Obama Is Refusing To Enforce The Law...The Facts: Obama And The DoJ Will Continue To Enforce DOMA, Despite Not Defending It In Court. ...

The Talking Point: Refusing To Defend DOMA Is Unconstitutional And Unprecedented...The Facts: Legal Precedent Exists For Refusing To Defend Unconstitutional Laws In Court. ...President George W. Bush Did The Same Thing When He Was President....As did President Bill Clinton....And President George H. W. Bush....Also, President Ronald Reagan...

The Talking Point: Obama Is Flip-Flopping In Order To Appease His Base...The Facts: Obama Has Been In Favor Of Repealing DOMA Since Before He Was Even Elected. ...

The Talking Point: Obama Wants To Force States To Recognize Out-Of-State Same-Sex Marriage...The Facts: Holder Only Dropped The Defense Of Section 3 Of DOMA. The suits currently challenging DOMA in the courts are specific to Section 3 of the law. Section 3 has to do with federal recognition of same-sex marriages already approved by the states....

The Talking Point: Obama Is Ignoring The Will Of The People... The Facts: Americans Are Evenly Divided On Marriage Equality. A poll released by the Associated Press in August of 2010 found that a narrow majority of Americans now supports federal recognition of married same-sex couples. 52% of respondents were in favor of marriage equality, with 46% opposed. ......

The Talking Point: Obama Is Wading Into Social Issues When He Should Be Focusing On The Economy....The Facts: Obama Was Legally Required To Take A Stand On The DOMA Lawsuits By March 11. ...

Does this sound familiar?

“Orientation has a genetic basis, but like other complex traits — height, weight — it is complex,” he said. “It’s not a single gene that leads to it. There’s a strong environmental component, too. It’s a very tricky problem.”

As with other traits that we are tempted to classify as either/or, orientation is probably better viewed as a spectrum encompassing the very strongly gay or straight, and a range of those who prefer one or the other, but have different degrees of comfort....

Orientation has sometimes been treated as pathological. Cesare Lombroso, the infamous 19th-century physician who identified various facial (and racial) features with criminal traits, also saw homosexual orientation as evidence of pathology, primitivism, savagery and criminality. And I was brought up with the story that a generation ago, in the bad old days (and in the old country), foolish unenlightened people tried to force homosexual children to convert and become straight. ...

The percentage of homosexuals in the population seems to be relatively constant, at 10 percent. And this goes back to studies of cave paintings… So though there has been prejudice against gay people, and though there may be some developmental risks, said Dr. Geschwind, “there clearly must be advantages as well. The reason why it maintains that way, nobody knows what it is.”

Dr. Francks said he was “quite happy with the sentiment of reassuring people that homosexuality is not some weird disability.” But, he added, “There’s no reason to go beyond that and say that gay people are even more talented.”

Now, just replace the word "homosexual" with "left-handed" and "orientation" with "handedness". The original article, on handedness, is here.We used to view left-handedness as a pathology and unnatural defect. Now, we recognize it is a normal human variant. Being gay, I argue, is no different.

You may also be interested in this article on the biological origins of homosexuality…including links to handedness.

Because later will be too late: video Sunday

Right now, a federal Judge has declared Prop8 illegal, but a stay keeps couples from marrying. Real couples, with real need. Here's why it matters.

House Speak Boehner launches DOMA defense

From AP:

House Speaker John Boehner said Friday he is launching a legal defense by the House of the federal law against gay marriage, which President Barack Obama's administration has concluded is unconstitutional.

"The constitutionality of this law should be determined by the courts -- not by the president unilaterally," the Ohio Republican said in a statement. "This action by the House will ensure the matter is addressed in a manner consistent with our Constitution."....

Boehner said he would convene a group of bipartisan congressional leaders that has the authority to instruct the House counsel to represent the chamber in court. The panel would include Boehner, Majority Leader Eric Cantor, R-Va.; Majority Whip Kevin McCarthy, R-Calif.; Minority Leader Nancy Pelosi D-Calif., and Minority Whip Steny Hoyer, D-Md.

Boehner said he was convening the panel "for the purpose of initiating action by the House to defend this law." But there was no immediate indication of specifically what action it would direct or when the group would meet.

Democrats on the panel were unlikely to support any defense of the law. Pelosi has lauded Obama's decision to stop defending it as a "victory for civil rights, fairness and equality."

On Friday, she criticized the move as a costly burden on House staff.

Is same sex marriage inevitable? Albert Mohler thinks so.

Albert Mohler, president of the Southern Baptist Theological Seminary, talks about marriage equality with Focus on the Family. The man is a lot of things but he isn't stupid. (From Right Wing Watch):

Daly: Do you think, as we look at those demographics and the polling data and all the other things, as the Christian community, is this something that is inevitable? I know this is a tough question here on Christian radio but I think it's time to start talking about what if.

Mohler: Well Jim I appreciate your candor in that because I think a lot of Christian conservatives are going to try to deny the obvious. I mean, when we're talking about same-sex marriage, we're talking about something that is already legal in one form or another in basically twelve states. So whether they call it marriage, as they do in a few states, or marriage lite as they have now in twelve states, the reality is that a good number of Americans are living where they're already facing not just the inevitably, but the reality, of same-sex marriage. I think it's clear that something like same-sex marriage - indeed, almost exactly what we would envision by that - is going to become normalized, legalized, and recognized in the culture. It's time for Christians to start thinking about how we're going to deal with that.

I think in the United States, Evangelical Christians in particular, have kind of grown accustomed to having our beliefs and moral convictions and ways of life supported by the state, by the larger culture and we're going to have to learn what it means to live faithfully as Christians when we do not have those supports. You know, it's one thing to live believing that you're in the majority position - everything comes pretty easy that way ...

Daly: A Christian nation.

Mohler: That's right. But when you live in a situation where we're clearly a minority holding to certain convictions that the larger culture either doesn't hold or doesn't hold tenaciously or as very important, we're going to find out just where we stand as Christians.

And along the lines of reality checking in, the lawyer for the American Family Association admits that DOMA is probably unconstitutional.

Pat Vaughn appeared on the Tuesday edition of the AFA Report ... "I think that marriage is defined by God as between a man and a woman. However, the Defense of Marriage Act is probably unconstitutional, particularly ... if you attempt to apply it so that to say that a marriage conducted in one state is not in effect in another. That clearly violates the Constitution."

Expect a renewed push for a Constitutional amendment to ban marriage equality.

No repeal in New Hampshire thisyear

From WMUR:

New Hampshire lawmakers won't be voting on bills to repeal the state's same-sex marriage law until next year.

The House Judiciary Committee voted unanimously Thursday to hold onto two bills that would repeal the law that has been in effect a little over a year.

Nearly 600 people had signed up to testify at a hearing on the issue last month, with most opposed to repeal. Many urged the committee to put the issue to rest this session, but the committee voted without debate to hold onto the bills. They will come up for a vote instead early in next year's session.

Democratic Gov. John Lynch, who signed the gay marriage law, said he will veto bills to repeal it.

Maryland Del. Sam Arora lied. How much will it cost?

Americablog tells us about a young progressive named Sam Arora who was elected to the Maryland house of Delegates. He made it clear to his constituents that he supports marriage equality and even put his name as co-sponsor of the bill now in the Maryland House.

Only now Sam Arora is getting cold feet. He is trying to deny that he supported equality and NOW says he won't support the bill for religious reasons. A bill he co-sponsored! That's some change of heart, Sam. What were/are you thinking?

Sam's constituents are calling him out on this, and his donors are asking for their money back.

Sam Arora lied to the people who elected him. What else did he lie about?

Seems a promising start to a career as a progressive politician may be over; Maryland progressives will remember this, if Sam does renege on his promises.

UPdate from Jonathan Capehart (WaPo):

The outrage directed at Arora is understandable. As is the sense of betrayal. He raised money from gays and lesbians based on his support for marriage equality. He secured the endorsements of Progressive Maryland and of Equality Maryland because of it. In fact, get a load of what he wrote as an addendum to his questionnaire for Equality Maryland.

I am a former law clerk to Attorney General Doug Gansler. I publicly supported his decision to recognize out-of-state marriage licenses for same-sex couples and immediately put out a release praising his findings. For me, it's simply a matter of equal rights under the law.

Gay Marylanders want the respect, dignity and responsibility that comes with marriage. And Arora was elected to his first term in the House of Delegates, in part, because of his promise to get it done. Politicians break promises all the time. But this is different. If Arora fails to vote for the marriage equality bill he campaigned for and co-sponsored when it comes to the floor next week not only would it be disgraceful, he would be a disgrace.

Del. Sam Arora misrepresented his opinions and lied o his constituents. His first term should be his last, and his life in politics should be over. Perhaps he can find a job with NOM.

Narrow victory in Wyoming

From Americablog, welcome news of a legislative victory in Wyoming:

The Senate bill (SJ5) that would have amended the Wyoming constitution to address marriage as only between a man and woman died last Friday when it failed to be presented for a final reading in the House. This was because after passing the first two readings the bill suddenly lost support as citizen voices peaked against it. The other bill, HB74, the Validity of Marriage bill, which would have changed the Wyoming statutes to not recognize any marriages, even if legal elsewhere, that were not between a man and woman failed Wednesday in the Senate as the two bodies were trying to agree to a concurrence and compromise written up by a conference committee of the Senate and House, the Senate failed to concur by a vote of 14-16.

...

The troubling part is that this is the farthest these bills have ever gotten, basically a few feet from the finish line and groups such as WyWatch, a Wyoming copy of Focus on the Family, have vowed to focus on knocking off a few seats to change the legislature to their favor.

Representative Cathy Connolly's three pieces of good legislation; a civil unions bill, a marriage equality bill, and a bill that addressed discrimination based upon sexual orientation and gender all failed to advance anywhere, sadly.

At this point while it is a victory for sure to have defeated two ugly pieces of legislation, it is a stalemate in the larger game. Eyes are on 2012 for the state races that will either hold the balance or tip it to someone's favor - who's is still up for grabs.

This is why, whatever state you are in, it is imperative that you participate and speak out and above all VOTE. Equality matters and only we-the-people can make it happen.

Attacks on equality continue in Republican Iowa

From the Des Moines Register, the right wing continues its attack on our system of government.

County recorders would be prohibited from issuing marriage licenses to same-sex couples and the Iowa Supreme Court would be unable to rule on the issue under a new bill sponsored by six conservative House Republicans.

..
Review of laws by the Supreme Court is one of the fundamental pieces of Iowa’s checks and balances system....

It would make the lower courts ruling final and it would also set up the likelihood that Iowa would have pockets of the state were the law was recognized and others were it was thrown out.
....
Massie said his ambition behind the bill is to advocate Judeo Christian ethics as law.

“The Republic is ruled by law. Now the question is from what source do those laws come,” Massie said.

Massie continued: “Everything I do in this building I look at as: I swore an oath to a supreme creator to uphold his law. I know that’s something more of a lecture but I want you to know where I come from. Is this guy just another religious Bible-thumping nut or do I have some reasoning for my thoughts? Historically, I think I have some reasoning for my thoughts.”
...
All the legislative measures restricting same-sex marriage rights face unlikely futures. The senate is narrowly controlled by Democrats and Majority Leader Michael Gronstal of Council Bluffs has vowed to block any such bill.

Should the stay be lifted?

From the LA TImes:

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system....

Every day that the case drags on, gay and lesbian couples who would like to marry are being deprived of their civil rights. That's not our wording; the federal trial judge decided that issue, at least for now. The denial of constitutional rights, even temporarily, is a deplorable situation that must meet high legal standards to be allowed to continue. In our view, those conditions have not been met.
....
Right now, same-sex couples are being deprived of their constitutional right to marry, and every indication is that unless the stay is lifted, they'll have to keep waiting for more than a year. That is real harm, and there is no valid reason to allow it to continue.

New poll on SSM; how long do we wait?

From Sarah Posner at Religion Dispatches:

Sherkat performed the analysis on the GSS data following the publication of his 2010 paper, "Religion, politics, and support for same-sex marriage in the United States, 1988–2008," published in Social Science Research. That paper concluded (as the above data through 2008 showed) that public opinion was indeed trending upward for support for same-sex marriage and downward for opposition, and noted, "Our findings suggest that in a little over a decade the majority of Americans will support the legalization of same-sex marriage." While the 2010 data doesn't show an over-50% majority, it does show, far more quickly than Sherkat expected, support outpacing opposition.

The data indicate that nearly everyone is modernizing except "sectarian PRotestants" and Republicans. If you identify strongly as a conservative Christian or Republican, you disapprove.

If you look at the data for inter-racial marriage, even today about 20% of Americans disapprove. I am going to bet that you will never, ever convert that rump of conservative evangelical Republicans to support same sex marriage.

The question is, will we put the rights of the minority, and the approval on the majority, aside for the views of this group?

Catholic Priest speaks out for equality (Video Sunday)

This from the debate in Maryland that may lead to marriage equality. Fr Joe Palacios is one brave priest.

Claiming the blessing

Many of you followed me here from my other blog and know all about this, but for those who haven't, I want to tell you a story.

Too often LGBT people, attacked and injured by conservatives and fundamentalists, see religion as their enemy. This is because those opposed to equality and justice for all often coat their bias with a cloak of religion, particularly Christianity. But it isn't religion, or Christianity, that's the enemy of love. It's those who misuse it, through their fear, or ignorance, or hatred.

So while we endure the right wing claiming the mantle of "Christian", there are many, many Christians who welcome their LGBT brothers and sisters,and work tirelessly to change their churches to do the same. These folks aren't giving us a free pass; they want LGBT people to be called to the same standards and expectation they have for straight people -- a call to enter at the strait gate, so to speak.

Although I'm not a believer, my wife is quite devout. She left the Roman Catholicism of her youth to join the Episcopal church, which in core doctrine is almost indistinguishable. The Episcopal Church (TEC) has come a long way, although like any institution, it moves slowly in mandating nation-wide recognition for LGBT couples. Still, TEC is known for two openly gay and partnered bishops (as well as numerous clergy), and in many cases, generous local options for same sex couples, at the discretion of their bishops. So in many Dioceses where marriage equality is the law of the land, those Episcopal bishops will allow you to be married in church. Others may not perform the actual marriage, but will perform a blessing.

In parts of Europe, of course, civil marriage is …uh, divorced, if you will ;-) from religious recognition. So there's nothing new in having the civil celebration separated from a religious blessing.

Last summer, our local Bishop gave permission to our parish to bless faithfully partnered same sex couples. We went through the process, which included obligatory counseling, copies of our marriage license, and letters to the Bishop seeking his approval, which he gave. So, today, my wife and I will have our marriage blessed in the church community in a special mass with our friends and family.

Not a gay marriage. Not a same-sex marriage. Just a marriage, like any other marriage, now with the added expectations of a religious community. As it should be.

Next time someone tries to tell you that "Christians" are all opposed to equality, remember this.

And don't be afraid to claim the blessing.

Theological resources for fighting the anti-gay Christians 1) From the Episcopal Church, "Doing the Theology": Claiming the Blessing To Set our Hopes on Christ Same sex relationships in the life of the church Holiness in relationships 2) Dealing with the Bible arguments: What the Bible says, and doesn't say, about same sex relationships (From Soulforce) From Bishop Gene Robinson: What the Bible says: reading the texts of terror Part 1 Part 2 (Leviticus) Part 3 (Sodom and Gomorrah) Part 4 (New Testament, Romans) Part 5 (Corinthians, Timothy) 3) The book, Reasonable and Holy: engaging same sexuality, by the Rev. Tobias Haller, BSG

The waves spread outward: the DOMA decision fallout

Initially, the DoJ said this decision was about the 2nd circuit. But like waves from a stone tossed in the water, the ramifications expand. From Metroweekly:

The fallout has been rapid and expansive ..., the Department of Justice filed a letter on Feb. 24 in the U.S. Court of Appeals for the First Circuit announcing that it "will cease its defense" of Section 3 of the Defense of Marriage Act in the two cases on appeal before the appellate court...

The third DOMA Sec. 3 challenge, Golinski v. Office of Personnel Management, is pending before the U.S. District Court for the Northern District of California. A...the judge in that case has asked the government to "explain how the government plans to pursue its defense of the case following [the Feb. 23] announcement that President Obama and Attorney General Holder have concluded that DOMA is unconstitutional and inappropriate to defend."...

Additionally, attorney Lavi Soloway announced that he will be filing requests in New York, New Jersey and California on behalf of three married, same-sex binational couples -- two gay male couples and one lesbian couples -- where one spouse is facing deportation. According to Soloway, "Each will brandish a pending green card petition filed by the American spouse on behalf of the foreign spouse." Soloway writes that he "will argue that deportation proceedings should be halted because the only thing standing between each couple and a green card is [Section 3 of] the Defense Of Marriage Act, which the President and the Attorney General announced this week will no longer be defended in court."

Meanwhile, the NY Times points out that the response from many quarters has been silence. Yes, Maggie Gallagher, NOM, and the Roman Catholic Bishops are irate. But other bellwethers of the Republicans have said....nothing.

A trap for REpublicans?

From Salon:

[T]he Republicans who run Congress may now be tempted to follow the administration's subtle suggestion in its Wednesday announcement that Congress should act to defend DOMA in court itself if it disagrees with this move.

That would be a mistake....

The defenders of California’s Proposition 8, who rushed in when that state's governor and attorney general refused the job, learned this lesson in a federal case last year, when their arguments and witnesses were utterly dismantled by the all-star legal team of David Boies and Ted Olson....

True, political discourse in America, particularly when it comes to the rights of gays and lesbians, has not always been characterized by the application of perfect logic to empirical data from qualified experts. If House Speaker John Boehner and his fellow Republicans elect to wage a fight for DOMA, they will undoubtedly phrase their announcement in the culture war language that plays so well with their party base.

But then, the Republicans and their lawyers will have to step into federal court and prove -- subject to cross-examination -- how the republic would be damaged if same sex spouses can get, say, federal railroad retirement benefits. As Boies said after dismantling that disqualified expert in the Proposition 8 trial, "the witness stand is a very lonely place."

Moreover, the gay marriage opponents during that Proposition 8 trial didn’t just look dumb -- they looked mean. Homophobic campaign ads looked very different when they were played in a building devoted to equal justice than they did when they appeared on niche cable channels. The congressional record from the original DOMA debate in 1996 is filled with assertions about immorality and sinfulness that were acceptable in polite company back then (perhaps), but that will sound very different today.

As Republican House members contemplate stepping in to defend the Defense of Marriage Act, they might want to consider all of these negatives. Oh, and that poll showing how many Republicans oppose gay marriage? In the 2010 election, the issue polled at dead last among voters' concerns.

DOMA decision commentary

NY TImes:

Citing an executive-branch duty to defend acts of Congress when plausible arguments exist that they are constitutional, the Obama administration had previously argued that legal challenges to the Defense of Marriage Act should be dismissed.

But those lawsuits were filed in circuits that had precedents saying that when gay people say a law infringes on their rights, judges should use a test called “rational basis” to evaluate that claim. Under that standard, the law is presumed to be constitutional, and challengers must prove that there is no conceivable rational government basis for enacting it, a hard standard for challengers to meet.

But the new lawsuits were filed in districts covered by the appeals court in New York. That court has no precedent establishing which legal test judges should use when evaluating claims that a federal law violates gay people’s rights.

That vacuum meant that the administration’s legal team had to perform its own analysis of whether gay people were entitled to the protection of a test known as “heightened scrutiny.” Under that test, it is much easier to challenge laws that unequally affect a group, because the test presumes that such laws are unconstitutional, and they may be upheld only if the lawmakers’ purpose in enacting them served a compelling governmental interest.

Mark Ambinder:

The announcement today does not overturn the law. That would take an act of Congress or a final finding by the judicial branch, probably the Supreme Court. But it changes the vector of the legal cases considerably. Privately, the administration believes that five justices of the Court, including Anthony Kennedy, the swing vote, would find parts or most of DOMA invalid if the federal government withdrew its arguments in defense of it.

Jack Balkin

Under these conditions, it becomes much more likely that DOMA will be struck down by at least one federal Court of Appeals-- possibly the Second Circuit, where the latest cases are being brought--and therefore even more likely that DOMA will be struck down when it finally gets to the Supreme Court. All of my previous predictions as to how constitutional challenges to DOMA will go forward must be revised.

Why is that? Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover ...

The Administration's decision to switch sides does not by itself guarantee what the lower federal courts or the Supreme Court will do. But it adds to the weight of social forces moving toward the recognition of equal rights for gays and lesbians....

Nothing is certain. But this announcement is very, very important as a symbolic matter. ...

When big constitutional changes come, it is usually the result of a series of events that cumulatively change America's constitutional culture. This is one of those events, and it is quite an important one.

Legal reasoning behind DoJ decision

Detailed legal argument in the letter from AG Holder to Speaker Boehner here.

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Breaking: Sen Feinstein to introduce repeal of DOMA

Chances probably nill, given the REpublican House and its interest in the culture wars,but it's a start. The press release:

“As a Member of the Judiciary Committee, it is my intention to introduce legislation that will once and for all repeal the Defense of Marriage Act.

My own belief is that when two people love each other and enter the contract of marriage, the Federal government should honor that.

I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now; and it should be repealed.”

Breaking: DOJ won't defend sec. 3 of DOMA

I have been following several federal cases that challenge section 3 of DOMA, which forbids the Federal Government from recognizing legal same sex marriages. (The other section says that STATES don't have to recognize them).

Numerous challenges have been brought that point out that the Federal Government is treating legally married citizens differently according to their gender. The furthest along is in Massachusetts, where a Federal Judge found for the married couples, and appeals were being files to take it to the Circuit court of appeal, and from there possibly to the Supreme Court. There are other cases pending too.

Now, the Dept of Justice announces they will not defend section 3 in two cases in the 2nd District court. (Despite claims otherwise, they are not required to defend if they don't want to). Other cases, confusingly, will continue to move forward; it appears this is specific to the 2nd district because there isn't already precedent there.

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Put on your helmets as wingnut heads are going to explode.

Hearings in New Hampshire

We've talked previously about the efforts to repeal marriage in New Hampshire. And the fact that more than 60% of New Hampshire voters want to keep equality in the Granite State.

The graph at right shows you how many people want to repeal marriage equality (red), and how many oppose repeal (blue).

Last week, there was a hearing. Equality supporters vastly outnumbered those against justice. Word on the street is that there's a good chance that the repeal bills will be "retained", which means, not considered further in this session.

The Governor has also promised to veto any repeal. However, with Republican supermajorities, an override could be successful. (The idea that the Tea Party is only interested in the economy is laughable--they have a strong streak of the fundy Christians, make no mistake). The most important thing, then, is to stave this off as long as possible. People have been getting married in New Hampshire for a while now, and the sun still rises. There are more important things to worry about. Let's make it stay that way.