A note on the Obama administration and DOMA

[ruggerson]

In various threads on marriage equality, I see a number of people claiming that the DOJ will no longer defend DOMA.

That is only partially true. The DOJ has said it will no longer defend Section 3 of DOMA which prevents the Federal Government from recognizing any state sanctioned same sex marriages.

The administration, however, has not to date said that it will cease defending Section 2, which exempts same sex marriage from the full faith and credit clause of the constitution. Most early challenges to DOMA have specifically targeted Section 3, so it remains to be seen how the DOJ reacts to a clearcut Section 2 challenge.

A bill which would repeal DOMA in its entirety was introduced this year - in the Senate by Senator Feinstein and in the House by Rep. Nadler.

President Obama has said, both in his campaign and as President, that he supports the full repeal of DOMA. He has yet to officially endorse the repeal bills currently before Congress.

[brooklynite]

1. Why has Section 2 not been the subject of a lawsuit?

I assume the Legislature cannot explicitly exempt states from a provision of the Constitution.

[ruggerson]

3. There have been earlier challenges to Section 2

which were dismissed in Federal Court. A Federal Judge also threw out both Sections of DOMA in an administrative case. The answer to your question is probably due to standing: a couple would have to be married in one of the handful of states currently authorizing same sex marriage, then move to a state that doesn't and THEN make a claim that they are legally married and have the state refuse to honor their claim. They would have to show some kind of harm inflicted by the new state in order to have standing. There are a few cases bubbling up through the system right now, and perhaps one of them will be strong enough to prompt a Federal Judge to issue a clearcut ruling declaring Section 2 unconstitutional.


edit: grammar

[dsc]

11. the irony is that the most likely route to a section 2 challenge

surviving standing is for the case to be a divorce case. Most states require residency for a divorce making it a hardship for a couple who moves from say MA to OH and wants or needs to get a divorce. A straight couple just gets the divorce in OH but the gay one can't.

[vi5]

2. Thanks for clarifying....

I'm sure this will still remain on "the list" as one of his grand accomplishments or "promises kept" or whatever other horse shit is on there that requires you to look at something with one eye closed and through a reverse telescope and with a piece of gauze over the lens to actually believe that some of those things were either accomplishments or promises kept.

[ashling]

4. Do you have link

for this?

If you are correct (and I don't dispute you) I misunderstood earlier reporting on this. Section 2 is clearly unconstitutional.

[ruggerson]

5. Sure

http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

[OKNancy]

6. It's my understanding that Holder ( and Obama) agree that the whole

bill is unconstitutional.

Not only that, but what is the difference between stating as President that he is for repeal, and "officially endorsing"?
What is an official endorsement?

[ruggerson]

8. The DOJ's official statement and policy

which reference Obama specifically as having ordered it, to date only cover Section 3.

If you have heard anecdotally otherwise, that has no bearing on official DOJ policy.

When a President endorses a specific bill, it lends the political and moral heft of the White House to the passage of the bill and telegraphs the priorities of the Chief Executive.

[HockeyMom]

7. DOMA Section 3 challenges

http://www.glad.org/doma

The Equal Protection Clause is being used.

[pnwmom]

9. Thanks for the info. n/t

[Bluenorthwest]

10. This is exactly the fact

Some bloggers and DUers have been insisting that DOMA is no longer enforced at all, while the truth is as you state it. They say "DOMA is no longer enforced so why is Dan Choi crying for pony." It is lie told by liars to assist their slanders.

[LiberalFighter]

12. Personally, I feel that it is a waste of time to legally challenge all of DOMA

or sections that will difficult. Or to spend resources repealing it legislatively under this Congress.

Considering everything, I think DOMA will become a thing of the past mostly as a result of individual states doing the right thing.

[ruggerson]

13. Even if every single state passed a marriage equality statute

not a single same sex marriage would be recognized by the Federal Gov't. DOMA mandates that in Section 3.

The only way to have Federal marriage equality is to get rid of DOMA, either through a congressional repeal or through the courts.

[LiberalFighter]

14. The point is that once the avalanche begins it will take care of DOMA.

In this case, legislation through the states and destroying parts of DOMA will make it happen.

[Liberal_Stalwart71]

15. Since the conservative, wingnut SCOTUS court overturned the results of Election 2000

and awarded the election to George "Dumbya" Bush on the ground of "equal protection," perhaps Holder believes that it can make the case better if they focused on Section 3 on the same grounds.

They must think that they can win the argument if they bring the case against Section 3 and not Section 2.

I fully see the strategy here.

[ruggerson]

16. Could be

but one could also craft an equal protection argument against Section 2:

Gay couple weds legally in state A. They move to state B. State B refuses to recognize their marriage and refuses to let them adopt a child, even though state B has a law on the books that lets married couples adopt children. You would then have a gay legally married couple and a straight legally married couple, both residing in state B, but being treated very differently by the state. The gay couple could bring a suit both under full faith and credit and equal protection.

The larger point is that the administration may very well pronounce Section 2 unconstitutional as well at some point down the road, but they have not as of yet.

And remember, they're not bringing these cases; they're just deciding whether or not to defend against them.