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  • The DOJ’s Unprofessionalism in Its Attack on Traditional Marriage

    First the Obama Justice Department defended the Defense of Marriage Act (“DOMA,” which defines marriage as between a man and a woman for the purposes of federal law, and clarifies that no state has to recognize a homosexual marriage from another state) in federal lawsuits. Well actually, it did such a  bad job of defending the lawsuits that even supporters of gay marriage acknowledged that the Justice Department’s non-defense of DOMA bordered on collusive litigation, concluding that the “DOJ’s faint-hearted advocacy is no way to run a legal system.”  It could constitute unprofessional behavior by the Justice lawyers and on the edge of ethically improper since lawyers are charged with robustly representing their clients.  They are not supposed to try to throw a case to the other side like the Chicago Black Sox did in the 1919 World Series.

    Next, Attorney General Eric Holder announced in February that the Justice Department would no longer defend DOMA in court, but that the President had directed executive agencies to continue enforcing DOMA unless it is repealed by Congress or the judicial branch renders a “definitive verdict” against the law’s constitutionality.

    Now the Justice Department has gone even further, filing a strongly-worded brief in federal court in San Francisco in Golinski v. United States Office of Personnel Management (OPM) arguing that DOMA was motivated by hostility toward gays and lesbians and is unconstitutional.

    The decision not to defend the statute was already a break with DOJ policy.  As I wrote previously, it is the well-established policy of the Justice Department to defend a federal statute unless no reasonable argument may be made in its defense, or unless the statute would infringe on some core presidential constitutional authority (that is, the President doesn’t need to vigorously defend a federal statute that he believes infringes on his Article II power).  Applying this policy, the Executive Branch has traditionally defended federal statutes vigorously, even in cases where it had strong constitutional doubts, and where it had strong policy reservations.

    But now we have a Justice Department so politicized that it is actually arguing against federal statutes in court, and doing so not based upon the dictates of the law—for example, the Supreme Court has never applied the heightened scrutiny that the government argues is required—but based on the apparent policy preferences and political ideology of this administration.  So much for taking care that the laws be faithfully executed.

    Contrary to DOJ’s position, there are strong arguments to be made in favor of traditional marriage.  If you don’t believe me, then maybe you will believe candidate Obama, who ran on a platform opposing same-sex marriage (although also opposing DOMA).  If opposition to gay marriage is simply the result of hostility towards gays and lesbians, then what are we to make of Mr. Obama’s position during his presidential campaign?  And the Justice Department is thus claiming that the 85 senators and 342 members of the House who voted to pass DOMA were all bigots.

    The brief filed by the Justice Department also raises one of the strangest and most contrary procedural issues I have ever seen.  The plaintiff is a federal government employee in California who sued after she could not get her “wife” enrolled in the federal employee health care plan that American taxpayers pay for.  The Justice Department’s Civil Division filed an initial motion to dismiss the plaintiff’s lawsuit.

    Paul Clement, who was hired by the House of Representatives to represent the federal government after Eric Holder announced that DOJ would no longer defend DOMA, entered this lawsuit to defend OPM and the federal government.  Acting on the federal government’s behalf, he filed a second motion to dismiss the lawsuit in June because binding Supreme Court and Ninth Circuit precedent support DOMA’s constitutionality and the federal statute easily satisfies the applicable rational basis review.  As a result of the filing by DOJ of its ill-considered and misleading brief, the government is now technically opposing its own motions to dismiss the case!?!

    The Justice Department should not be sandbagging duly enacted federal laws in court because it disagrees with the policy.  As Mr. Obama’s own prior position indicates, there were legitimate bases for the government to favor traditional marriage.  The administration has gone from saying it would leave the defense of DOMA up to Congress to now trying to actively thwart and sabotage that very defense of DOMA being asserted by Congress on behalf of the federal government and American taxpayers.  It is this kind of legally bizarre behavior that has led many to conclude that this is the most politicized Justice Department in living memory, which given DOJ’s enormous power, is a very dangerous threat to our concept of ordered liberty and adherence to the rule of law.

    Posted in Legal [slideshow_deploy]

    20 Responses to The DOJ’s Unprofessionalism in Its Attack on Traditional Marriage

    1. Louis says:

      If you want "traditional marriage" so badly…why not bring back slavery of women…thats what "traditional marriage" was all about! Owning multiple wives..using them for sex, beating them, owning them etc. It was not a "romeo and Juliet" kinda romance!

    2. Yes, there are strong arguments to be made for "traditional marriage," but then again NOTHING is happening to "traditional marriage" as it pertains to Straight (i.e. heterosexual) couples. Most people are Straight, always have been and always will be, and they will continue to date, get engaged, marry, and build lives and families together as they always have. None of that is going to change when Gay couples are allowed to do the same. No Straight married couple is suddenly going to feel compelled to run off to divorce court when they find out that the Gay couple next door has decided to tie the knot.

      Why is it that it's perfectly acceptable, even admirable, for Straight couples to date, get engaged, get married, and build lives together in the context of monogamy and commitment, and that this is a GOOD thing … but for Gay couples to do exactly the same is somehow a BAD thing? To me this seems like a very poor value judgment.


    3. As for DOMA, the Obama Administration has chosen to stop defending it in court because it is Constitutionally INDEFENSIBLE! First and foremost it violates the 14th Amendment, in that is establishes differing legal standards between Gay and Straight couples in the United States.

      Consider: A Straight couple legally married in Iowa is automatically entitled to 1,138 legal benefits, protections, and responsibilities according to the Government Accounting Office (GAO). Many of those benefits have to do with tax law, Social Security, inheritance rights, child custody, and so on. But because of DOMA, a Gay couple that is legally married in Iowa is still unrecognized by the federal government for those benefits.


    4. Consider, also, the "Full Faith & Credit" clause of the Constitution. Because of this, any Straight couple can fly off to Las Vegas for drunken weekend, get married by an Elvis impersonator, and that marriage is automatically honored in all 50 states, and at all levels of government. But thanks to DOMA, a Gay couple that is legally married in Iowa becomes UN-married if they relocate south to Missouri.

      The ONLY real difference between a married Gay couple and a married Straight couple is the gender of the two people who have made the commitment. It has nothing to do with procreation, since couples do not need a marriage license to make babies, nor is the ability or even desire to make babies a prerequisite for obtaining a marriage license. So there is really no constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits, protections, and responsibilities that married Straight couples have always taken for granted. This cannot be accomplished in a piecemeal, state-by-state fashion; it is the FEDERAL government which, through its own actions, has made this a federal issue.

    5. martin d says:

      The headline to this story seems unrelated to the body. Where is the support that the doj's actions here are an attack on traditional marriage? If sons were to fall, I don't see how my traditional marriage is lessened in value.

      Regardless, the headline should be supported by the arguments made in its corresponding article.

    6. Paul says:

      Because governments regularly argue in court that a minority should be deprived of rights and benefits that their neighbors enjoy. I'm not sure why Obama chose not to do it this time (sarcasm by the way)

    7. Curt says:

      I don't get it. How is traditional marriage being attacked?

    8. Frank J. Cardinalli says:

      DOMA was unconstitutional when it was wriiten but became law because of a political deal
      between Bill Clinton and the Republicans. And it is still unconstitutional.

    9. 2much4u2handle says:

      It is about justice. It is a law that is unsustainable. The Doj is right in what it is doing because it is indefensible. Forget about your personal views this is an unconstitutional law so it makes the it impossible to defend. People keep saying the tax payers this and tax payers that, Gays are taxpayers too.

    10. Carolina Hicks says:

      what DOJ did is correct, DOMA repeal will end discrimination against gays and lesbians who also are part of family and religion.

    11. tim says:

      Your article is a joke..there are absolutely no reasons to defend "traditional marriage". The Dept of Justice , as well as several federal judges, Most of them appointed by conservatives, have all declared DOMA unconstitutional. Discrimination is never justified. you social conservatives used to state that gays are perverts (many of you still do!) , because they just "wanted to sleep around". now you realize that we want families, security, rights, love, commitment, healthy long lasting relationships…my my….we are JUST LIKE YOU!. Scary !!

    12. Jill says:

      grow up…you using "wife" in quotations is purely insulting..as they are legally married in the state of CA..that would be her wife..not her "wife".
      Furthermore..just because 342 members of congress voted for a discriminatory law..does not make is constitutional or right. It clearly is in violation of the US constitution. Clinton has even said that he regrets signing DOMA into law..and even the Republican man that wrote the law states now that he is against it!!

    13. David says:

      Hans, you seem to think that you live in another country…this is the USA..where freedom and equality for every citizen exists (or at least SHOULD)..and that is the driving point..this is clearly a civil rights issue..you cant use your religion to subject another to your way or no way!
      Gay people are families, human beings who should be entitled to EVERY right that you have…any other way of thinking is bigoted..so pardon me for calling you a bigot…if your article is read 100 years from now…I have the feeling everyone reading it would think your a bigot….if the shoe fits…

    14. Red says:

      DOMA has no defense. And how exactly is 'traditional marriage' under any threat by allowing gay couples to marry?

    15. Marco Luxe says:

      This article is pure propaganda devoid of any legal analysis. It is only innuendo, ad hominem attacks and mock horror. Where is the legal analysis?!? Where is an evaluation of the factors promulgated by decades of Supreme court decisions that must be used to evaluate the level of scrutiny? Just where is the recent DOJ brief wrong when it gives examples of decades of government discrimination against gay civil servants, et al to show the SCOTUS-defined factors of an historic and pervasive disparate treatment by law of a minority group with an ineffective political voice?

      As you wrote previously "it is the well-established policy of the Justice Department to defend a federal statute unless no reasonable argument may be made in its defense." That policy is not really a rule, as it was eviscerated by HW Bush when his SG, future-justice Roberts, argued against a federal law in order to remove the Congressionally-mandated diversity requirements in broadcast licensing. [Metro v FCC] How did Bush decide the policy enacted by Congress and signed by the President had no reasonable justification? Oh yeah, it went against big business interests exactly as it was designed to do. Now that's lowering the bar!

    16. Justin says:

      Everyone seems to be missing the point of this post, it's about the law. It doesn't matter how you feel about gay rights, civil rights, equality, or anything else like that. The purpose of the executive branch, i.e. the Department of Justice is to enforce the laws that are on the books. In response to Tim, as the article clearly points out, every constitutional challenge to DOMA has been rejected, so in its present state the law is still deemed constitutional.

    17. Justin says:

      If you believe it to be unconstitutional then yes someone may bring a case against the federal government to try and have it overturned, but it is the DOJ's obligation to defend the law. This is nothing more than a legislative usurpation by the Obama administration, seeking to enforce the laws it agrees with and disregard the ones it does not. The reality is, it's the DOJ's purpose to defend vigorously all laws including those which the President and Attorney General may not personally agree with. We have two processes for ending the law of DOMA in this country: Congress can repeal it or the Supreme Court can declare it unconstitutional, but it definitely cannot and should not cease being in effect because the President decided he no longer felt it necessary to uphold the law. I know its difficult for gay rights activists to understand or respect this point, but the rules of law are in place for good reason. Imagine if a segregationist somehow hypothetically came to be President and his DOJ determined that the civil rights act was unconstitutional and that he would no longer enforce it. Just as it would not be within his authority to make that determination, so to is it not within Obamas.

    18. Tony says:

      If Congress passed a law allowing schools to segregate based on race and overrode the President's veto, the law would be challenged as unconstitutional. DOJ would not defend it. No one, other than Hans and the people in Congress who voted for it, would complaint. It is apparent it would be the right thing to do.

      Though some people disagree with the analysis, it is the same here. A law passed by the legislature is patently unconstitutional. DOJ and the Prez have to uphold the constitution above any other law. Their job is to get this law declared unconstitutional. Ten years from now, the administration's move will be as obviously correct as the slavery scenario is now.

    19. Gila66 says:

      Marriage–the unique union between one man and one woman–is worth defending in law because of its procreative potential. Of course not every couple makes babies, nor do you need a marraige license to do so. But heterosexual relations DO make babies, and no same-sex couple can do so without involving a third party and a heterosexual relationship at some point, in some way. That alone differentiates marriage law from all other laws. Indeed, it is the risk/opportunity of procreation that drives most of marriage law–consanguinity restrictions, paternity presumptions, child support obligations, and in the days of sanity before the sexual revolution, for-fault divorce laws. Those who push same-sex "marriage" simply don't bring the same biological/social interests to the table. For DOJ to assert that millenia of law that imposes duties and privileges on marriage is unconstitutional is lunacy. But that scarcely slows down the DOJ

    20. Erik Big-e says:

      Louis, I don't know what happened in your family, but traditional marriage goes way back in the Bible. God told Abraham to listen to Sarah and to do what she said. It was always a partnership. Men and women are different, so the traditional roles are different.

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