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Obama Administration Jumps Into Supreme Court DOMA Fight

by Steve Weinstein
Contributor
Saturday Feb 23, 2013
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President Barack Obama, who began his presidency advocating for separate-but-equal (except when they’re not) equivalencies to full-out marriage for gay couples -- the same position as his predecessor, George W. Bush -- has finally come around full circle.

On Friday, U.S. Solicitor General Donald Verrilli submitted a brief that called the federal Defense of Marriage Act unconstitutional because it violates "The fundamental guarantee of equal protection." As Solicitor General, Verrilli presents the administration’s views to the Supreme Court.

The brief uses a specific section of the 1996 law, which was signed by then-President Bill Clinton, to insist that the result means "the law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples" and that "this discrimination cannot be justified as substantially furthering any important governmental interest."

The most controversial part of Verrilli’s brief deals with the battle the administration has been waging with Congress -- specifically the GOP-dominated House of Representatives. The House has been voting extraordinary funds to fight DOMA repeal on its own, thus making for a historic clash between a presidency that refuses to defend a law (as the Constitution mandates him to do) on the one hand; and a legislative body taking extra-legislative action by intervening in the courts.


The brief does not address the funding by the House directly. Rather, it attacks the reasoning that House Speaker John Boehner and others have been using to oppose the administration.

"This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under the law," the brief reads. In other words, even though a president is sworn to uphold the law of the land, when by upholding that law he undermines a "fundamental constitutional command," he is bound to bow to a more profound underlying constitutional principal rather than a 16-year-old law.

Verrilli addresses another hot-button issue head-on in his brief -- perhaps the most controversial one of all. "Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people." This basically throws out all of the extra-legal arguments based on religion, natural law, procreation, hygiene and the rest of the reasoning among the religious right and cultural conservatives.

Even if the Supreme Court does not agree that this case necessitates a look at a more fundamental principal of the Constitution, the Obama’s Justice Department argues that even if "sexual orientation may be considered to fall short in some dimension." That is, in having higher scrutiny applied, "the history of discrimination and the absence of relation to one’s capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an ’unpopular group.’" In that "uniquely" rests the administration’s argument that a lot is riding on this ruling.


The case before the Supreme Court deals only with the legality of DOMA, which is being challenged by Edie Windsor, 83. The New Yorker was impelled to take on the federal government when she realized the many monetary burdens she faced as married to a female partner and then as a widow. Without the protection of federal law, gay couples are subject to all kinds of discrimination, not only monetary. Couples whose marriages are recognized only by the state lose out on everything from spousal veteran benefits to federal employee health insurance, from joint filing on federal income-tax forms to being barred from the Family Leave Act, from a deceased’s pension to losing federal tax deductions for combined expenses.

At the same time, California’s Proposition 8 also looks to be headed to the Supremes. Passed by voters in a 2008 referendum, it prohibits same-sex marriage in the Golden State. It began with then-San Francisco Gavin Newsom officiating over gay weddings on the steps of City Hall. Since then, it has wended it way up through the federal court system, piling victory on victory until a federal appeals judge ruled the proposition was unconstitutional.

Some believe that the court might hedge by applying its decision only to the jurisdiction of the lower court that made the ruling. That still would represent a huge victory for LGBT Americans and their allies, since any Supreme Court ruling - especially one on a subject as controversial and divisive as this one -- will inevitably be cited as case law everywhere.

Even though it was easy to see where the administration was going with the Windsor case, the suddenness of the filing took many by surprise. As recently as Wednesday, Obama told a San Francisco TV station "I have to make sure that I’m not interjecting myself too much in this process, particularly when we’re not a party to the case."

He has certainly interjected himself in the process now. The case (and the Prop 8 one as well) are interesting not only in its subject matter but in the way they are breaking legal ground. Not of least interest is whether the court will decide if the House’s legal group has the "standing" to sit in the defense chair at all.

The Prop 8 case has its own set of weird occurrences. Ted Olson had been considered an intellectual leader of the GOP right. He was the lead attorney in Bush v. Gore, where he won the presidency in the Florida "hanging chads" debacle. His wife was perhaps the nation’s most-visible conservative pundit before she died in the air during 9/11. Olson is lead litigant against Prop 8. His co-litigator is been David Boies -- his antagonist in Bush v. Gore.

There’s no question about the Justice Department brief to the Supreme Court in the Windsor case will do more than raise eyebrows or keep legal scholars busy wrestling with the paradoxes. It also means that the president has thrown the full weight of the Executive Branch toward bringing down DOMA. At the very least, this will force right-wing justices like Alito to sharpen their verbal spears, since they will now not only be attacking the plaintiffs and their advocates, but the president himself.

Considering his public statements on gay marriage during the last presidential campaign and even a shout-out in his inaugural address, as Buzzfeed has pointed out, "The filing was expected and echoes arguments made by the Department of Justice in court challenges since President Obama and Attorney General Eric Holder concluded in February 2011 that DOMA was unconstitutional."

The administration has not indicated whether or not it will similarly interject itself into the Prop. 8 case. Since this is dealing with one state, the president is not officially involved. Even so, don’t be surprised if the Justice Department files an amicus curiae brief in that one.

We won’t have too long to wait. The deadline for submitting amici is Feb. 28. Stay tuned.


Steve Weinstein has been a regular correspondent for the International Herald Tribune, the Advocate, the Village Voice and Out. He has been covering the AIDS crisis since the early ’80s, when he began his career. He is the author of "The Q Guide to Fire Island" (Alyson, 2007).

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