Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget.

“Now all of a sudden I’ve got someone who wasn’t a spouse before, that I had no responsibility for, who is now getting claimed as a spouse that I now have financial responsibility for,” Steele told Republicans at the state convention in traditionally conservative Georgia. “So how do I pay for that? Who pays for that? You just cost me money.”

To deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose.

It’s wrong to have millions of Americans living as SECOND-CLASS CITIZENS in this nation. We can bring about real change for all LGBT Americans. I WILL NEVER COMPROMISE ON MY COMMITMENT TO EQUAL RIGHTS FOR ALL LGBT AMERICANS. I WILL USE THE BULLY PULPIT to urge states to treat same-sex couples with full equality in their family and adoption laws. I support the complete repeal of the Defense of Marriage Act (DOMA). Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does. I WILL PROVIDE THAT LEADERSHIP. Together, we will achieve real equality for all Americans, gay and straight alike.

DOMA therefore must be analyzed under rational-basis review. Under the highly deferential rational basis standard, moreover, a court may not act as superlegislature, sitting in judgment on the wisdom or morality of a legislative policy.

Its cautious decision simply to maintain the federal status quo while preserving the ability of States to experiment with new definitions of marriage is entirely rational. Congress may subsequently decide to extend federal benefits to same-sex marriages, but its decision to reserve judgment on the question does not render any differences in the availability of federal benefits irrational or unconstitutional.

On the merits, plaintiffs' claims that DOMA violates the Full Faith and Credit Clause and their "right to travel" both fail as a matter of law. In allowing each State to withhold its recognition of same-sex marriages performed in other jurisdictions, Congress was merely confirming longstanding conflict-of-laws principles in a valid exercise of its express power to settle such questions under the Full Faith and Credit Clause. That Clause ensures that each State retains the authority to decline to apply another State's law when it conflicts with its own public policies. DOMA is fully consistent with that constitutional principle, as it permits States to experiment with and maintain the exclusivity of their own legitimate public policies — such as whether that State chooses to recognize or reject same-sex marriages.

George W. Bush (ACLU et al., v. Norman Y. Mineta - "The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems."), Bill Clinton (Dickerson v. United States - "Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda.... Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court's Miranda cases."), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha - "Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.") all joined in lawsuits opposing federal laws that they didn't like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State's policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").

DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources — and deciding to extend benefits incrementally — are well-recognized legitimate interests under rational-basis review.

The Department of Justice insists that Pres. Obama wants Congress to change DOMA... but in the absence of a new law, the government is duty-bound to enforce the laws of the land unless they are clearly unconstitutional... The response from Obama aides has generally been... Trust us. We're doing what we can. We'll get this stuff done. But it will take some time. We've got a lot on our plate.

"Note that the standard for defending a statute, once enacted, is lower than whether, in our judgment, it is constitutional," a senior administration official said. "It is whether there are arguments that can be made. The DOMA statute has been found constitutional by at least 6 courts and has never been struck down. Whatever we think, it would be pretty hard to say that there are not 'reasonable arguments' with that context."

Why Smelt posed a weak legal challenge to DOMA:

As someone who wants to see DOMA dismantled and invalidated, I would love it if this ninth circuit case would evaporate into the ether.

Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it’s not anywhere near as strong as the one that was brought in the federal district court in Massachusetts (a suit filed by Gay and Lesbian Advocates and Defenders).

In an environment where the Supreme Court is still quite conservative, what makes a suit a strong one is that it finds a point of entry in which it’s possible to invalidate a law in a number of its applications by using more of a scalpel that might appeal to five justices rather than a bludgeon that will almost certainly ask more of the court than it is willing to do.

What’s strong about the Massachusetts case is that these are concrete situations of people who are legally married under the laws of states like Massachusetts or Vermont, and who are being discriminated against by the federal government with respect to federal benefits simply because they are same-sex couples. There’s no other difference between them and other couples in that state, and the court could agree with that without accepting any of the broader theories advanced in the (Smelt) lawsuit in the central district of California, which is basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down.

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Defending congressional statutes:

Under the traditions of the solicitor general’s office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law.

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There are ways for the president to get rid of DOMA. He can advocate for its repeal, he can eventually urge the solicitor general to join in a more surgical attack, but he certainly isn’t obliged to go along with every plaintiff who brings a lawsuit.

The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration’s position doesn’t take that institutional reality into account.

http://www.equaljusticesociety.org/2009/01/president-appoints-tony-west-as-asst-attorney-general-civil-division/

President Appoints Tony West as Asst. Attorney General, Civil Division
Posted by keith on Friday, January 23, 2009 ·

President Barack Obama yesterday announced his nomination of Morrison & Foerster partner Tony West to serve as Assistant Attorney General for the Civil Division of the Department of Justice.

“I am grateful to have these distinguished individuals joining my administration, and I have the greatest confidence that their service will meet the highest standards of this department,” said President Obama. “The American people deserve to have faith that their Justice Department will keep them safe and uphold our most basic rights. This group has the depth of experience and integrity necessary to accomplish these goals.”

“Tony has been an outstanding leader in the firm,” said Steven M. Kaufmann, the Chair of Morrison & Foerster’s Litigation Department in a statement. “He is a tremendous trial lawyer, mentor, and colleague. We will miss Tony as our partner, but are proud that he will bring the skill, values, and dedication that he demonstrated at Morrison & Foerster to the service of the American people. The Justice Department gains a tireless public servant and talented lawyer.”

Tony has been a longtime supporter of the Equal Justice Society. In 2006, he hosted at MoFo and emceed a packed gathering of summer law firm associates to introduce them to the Rollback Campaign. EJS organized and promoted the event.

All of us at EJS congratulate Tony on his appointment and wish him the best at DOJ.

EJS:

http://www.equaljusticesociety.org/grandalliance/

Marriage Equality
· Submitted an amicus brief in support of the California Supreme Court’s decision to affirm the right to marry for same sex couples
· Participated in campaign to defeat Proposition 8 in November, 2008
· Signed onto an amicus brief challenging the validity of Prop 8 as part of a coalition of organizations representing communities of color and facilitated LGBT/Black alliance in the wake of Prop 8’s passage

United States Attorneys conduct most of the trial work in which the United States is a party. The United States Attorneys have three statutory responsibilities under Title 28, Section 547 of the United States Code:

•the prosecution of criminal cases brought by the Federal government;
•the prosecution and defense of civil cases in which the United States is a party; and
•the collection of debts owed the Federal government which are administratively uncollectible.

http://www.usdoj.gov/usao/index.html

It is imperative that there be public confidence that the laws of the United States are administered and enforced in an impartial manner. To that end, all components of the Department of Justice, including United States Attorneys' Offices, shall abide by the following procedures governing communication between the Department of Justice and the White House.

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Pending Civil Investigations and Cases

The Department shall provide the White House with information about pending civil investigations or cases only when doing so is important for the performance of the President's duties and appropriate from a law enforcement or litigation perspective. Except with respect to national security matters, all initial communications that concern or may concern a pending civil investigation or a case pending at the trial level should take place only between the Office of the Counsel to the President and either the Office of the Deputy Attorney General or the Office of the Associate Attorney General, all initial communications that concern or may concern a civil case pending at the appellate level should take place only between the Office of the Counsel to the President and the Office of the Deputy Attorney General, the Office of the Associate Attorney General, or the Office of the Solicitor General. If appropriate with regard to a particular case or investigation, the Office of the Counsel to the President and the senior Justice Department official with whom the White House is dealing will design and monitor a process for ongoing contact between the White House and the Justice Department concerning that particular matter.