Obama Administration Attempts to Weaken Constitutional Protections for LGBT Americans

Two articles about the new DOMA repackaging:

Obama Administration Attempts to Weaken Constitutional Protections for LGBT Americans

Emma Ruby-Sachs.Lawyer
Posted: August 17, 2009 07:44 PM

Yesterday, the Obama administration filed a follow-up brief in the Smelt case -- the couple in California challenging DOMA who were the recipients of an imprudently written reply brief back in June. This time, it looks like some liberals in the Justice Department got their hands on a copy of the brief before filing. There are some nice words in there aimed at smoothing hurt feelings.

But the brief also argues for a new and dangerous interpretation of the rational basis test.

The rational basis test is applied by the court to laws that violate the equal protection clause, but do not implicate certain protected groups. In other words, if the law does not discriminate on the basis of race or gender, it will likely be upheld if the government can find any rational reason why the law exists. These reasons can be invented on the spot and are usually not tested very vigorously.

However, even this low standard of constitutional review has limits and one very important limit is that the government cannot argue that a law discriminates for the sole purpose of "administrative convenience."

This limit on rational basis is essential. Otherwise, all offensive and discriminatory laws would be maintained indefinitely because change is, frankly, hard and often expensive. As Chief Justice Burger said in his majority opinion in Reed v. Reed 404 U.S. 71 (1971) (a case where rational basis review was applied to a law discriminating against women):

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.

This is a pretty important precedent, but Obama's Justice Department is interested in changing the way constitutional review works. They write in their brief:

Courts have held that challenges to DOMA are subject to rational basis review. Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. ...Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

Effectively, Obama is saying that, given the vast disagreements between states about whether institutionalized homophobia is okay, it would just be too inconvenient for the Federal government to weigh in. Better to wait and see and once there is consensus, the government will have an easier time legislating all this marriage business.

http://www.huffingtonpost.com/emma-rubysachs/obama-administration-atte_b_261624.html

Published on Tuesday, August 18, 2009 by The San Francisco Chronicle

US Walks Fine Line on Anti-Gay-Marriage Law
by Bob Egelko

SANTA ANA -- The Obama administration tried Monday to defuse anger among gays and lesbians over its defense of a law denying federal benefits to same-sex married couples, criticizing the Defense of Marriage Act as it asked a judge to dismiss an Orange County couple's legal challenge without ruling on the law's constitutionality.

The administration "does not support (the law) as a matter of policy, believes that it is discriminatory and supports its repeal," Justice Department lawyers said in written arguments in U.S. District Court in Santa Ana.

They said the administration would defend any federal law if there are "reasonable arguments" to uphold it. But this case "can and should be decided on much narrower grounds," the department lawyers argued - the plaintiffs' failure to show that the law has harmed them.

The couple have not sought any of the benefits the law withholds from same-sex couples. Another suit is pending in Massachusetts by couples who applied unsuccessfully for federal marriage benefits.

The law, signed by President Bill Clinton in 1996, denies joint tax filing, Social Security survivors' payments and other federal benefits to same-sex couples. It also allows states to withhold recognition of same-sex marriages performed elsewhere.

The Orange County couple, Arthur Smelt and Christopher Hammer of Mission Viejo, wed last year before California voters outlawed same-sex marriage by passing Proposition 8 in November.

Smelt and Hammer, one of 18,000 couples whose pre-Prop. 8 marriages were upheld by the state Supreme Court, contend the federal law violates their constitutional right of equal treatment. A judge has scheduled a hearing Monday on the government's request to dismiss the case.

http://www.commondreams.org/headline/2009/08/18-3

Before, he didn't even bother to hide his disdain for us. Now that he's discovered there may be monetary consequences to fucking over the gays, he butters us up and hopes that we're too stupid to actually READ the thing.

Obviously I'm biased, but the single most glaring characteristic of Obama's presidency so far is a complete and utter contempt for homosexuals.

Do you people realize that we're worse off federally under Obama than we were under Bush? Can you get your head around that concept?

We are still in Iraq he is abandoning the public option for health care and now this, bend over here it comes again.

Welcome to DU! :hi:

I said before and I say again that McClurkin (sp?) and Warren *did* mean a great deal, all bad.

along with using the Obama quotes to push the Prop H8 vote.

Obama felt that he'd get more votes by pandering to the Religious Right than to LGBTQ's & their PFLAG people.
I doubt very much that just... heck, even being neutral to gays would have turned off the fundies who were predisposed to vote for him; they would have voted for him anyhow.
And most LGBTQ's & their PFLAG people ended up voting for him anyhow even with all the warnings.

Warnings which we were told to ignore or was our imagination or exaggeration. Yeah right. :eyes:


Will it happen again? Not from THIS lesbian and her parents & (most) friends. My aunt said to me 'if you're not important to him (meaning Pres. Obama), he's not that important to us'.
I luv my auntie,
although to be absolutely honest, if Obama had some principles and followed through on his pre-election promises, I don't know if she would have put it that way-- she wouldn't have said it at all.


And NONE of this makes me happy. What WOULD make me happy is a president who has principles, stands up to his promises and doesn't ridicule, denigrate and sacrifice a large part of his base (straight liberals included). Without, our first black president will not be remembered very well

and that's incredibly sad.



(Pardon random use of caps, I get too impatient to type out html -- very hunt & peck with those keys)