Obama Administration Moves to Dismiss Lawsuit By Gay Married Couples Over Federal Benefits

225px-official_portrait_of_barack_obama180px-New_York_City_Proposition_8_Protest_outside_LDS_temple_20Civil libertarians have been objecting that liberals are ignoring the Obama Administration’s continuation of a number of Bush programs and policies — in contradiction to President Obama’s presidential campaign promises. From torture to unlawful surveillance, Obama has continued the positions of President Bush in federal courts in seeking to dismiss lawsuits and claim sweeping executive privilege authority. Now, the Obama Administration is seeking to get a court to dismiss a lawsuit by gay married couples from Massachusetts who are challenging the denial of federal marriage benefits.

Bill Clinton pushed through the 1996 Defense of Marriage Act that bars the federal government from recognizing same-sex marriages. Gay couples have challenged the constitutionality of denying them the same benefits as other married couples. The Justice Department is now seeking to have their lawsuit dismissed. It insists that it must defend the law and claims the lawsuit is meritless. The Administration challenges the right of gay couples to demand such benefits.

It is arguable where the Justice Department must defend such laws in this way if it views this law to be unconstitutional. There are, in my view, a number of alternative options. First, it could have elected not to seek dismissal as opposed to ruling on the merits. As in prior cases dealing with electronic surveillance and torture, the Administration is fighting to block citizens from having a court review the matter by challenging standing and the cause of action. Of course, the Justice Department could argue that, even with a dismissal, the Court will have to reach the threshold question of whether these couples have any legal claim and, if they do not, there is no reason to proceed beyond that threshold question.

Second, it could offer a more nuanced defense that the law may be unconstitutional under certain circumstances or could be found unconstitutional if the court recognizes certain protections for gay couples. The Administration could recognize in its filing that these couples should have recognized rights to benefits as married couples and even question the constitutionality of DOMA (if it believes that it is unconstitutional to deny married status on the basis of sexual orientation). While the Administration cites prior precedent against such claims, it does not indicate any support for the constitutional claims of gay couples. On the merits of the lawsuit, there is little difference between the positions of Bush and Obama Administrations.

Third, though admittedly novel and rare, the Department could have an outside attorney defend the law if the Department views the law as unconstitutional or discriminatory. If the Administration views this law to be discriminatory, it can convey its view by declining to defend it directly while appointed a specially appointed attorney to do so. While the filing acknowledges support for gay and lesbian couples, it seems to support them in a potential legislative setting rather than a constitutional claim.

There is certainly an argument to be made that the Justice Department must defend federal laws. However, even if this aggressive approach is warranted, it would be far more convincing if the Obama Administration was seeking the repeal of DOMA in Congress. It could easily put such a measure on the agenda in the Democratically-controlled House and Senate. Obama previously supported such a move, but his Administration is now believed to be privately opposed to such a vote in this Congress. Gay activists are objecting that they have once again been given a bait and switch by the Democrats. Obama worked hard to secure gay and lesbian votes during the election, but his Administration has not been aggressive in seeking reforms from the terminatin of the “don’t ask, don’t tell” policy to the DOMA issue.

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9 thoughts on “Obama Administration Moves to Dismiss Lawsuit By Gay Married Couples Over Federal Benefits”

  1. Obama is performing a public service by teaching a whole new generation of young people why voting is a waste of time.

  2. This administration’s position must feel like another stinging betrayal to those who enthusiastically supported Obama’s election based on his strong campaign statements on gay marriage. JT lays out three alternatives the administration could have taken to allow this challenge to move forward. Let’s hope they’re lurking here somewhere.

    What chance does the new Respect for Marriage Act of 2009 have?

    “(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

    (b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.”

  3. From article: “There is certainly an argument to be made that the Justice Department must defend federal laws.”

    But not bad federal laws. Truman did not defend or maintain the federal laws supporting segregation in the armed forces.

    There are two lawmaking three avenues open to a President/administration in changing a law; courts, Congress, Executive Order. The current administration could use advocacy in the first two and direct action in the last to make or reform this civil/human rights issue; to get on the side of the angels. That he has not and seems still unwilling to do so will help make him a 1 term President IMO.

  4. What if Nixon didn’t enforce the Civil Rights Act? I would think that Obama is particularly cognizant of the fact that administrations have to uphold laws from prior administrations. If he passed on this, it would open up future Justice Dept.’s to all kinds of political abuse. Remember, even with all the political shenanigans at DOJ under Bush, the DOJ still argued against Heller. In fact, the DOJ was really quite aggressive against Heller and Bush took a lot of flack from the Right.

  5. I’ll opt happy but complicated.

    There is a term in Japanese that has no literal “easy” equivalent in English. Mono no aware. The closest single adverb in English would be our use of the Greek term “pathos”. It’s more accurately a bittersweet appreciation of the transience of the ephemeral or beautiful in life. If you’ve ever wondered why the Japanese have a cherry tree fetish I point to the beautiful and delicate but brief blossom of said trees. The Japanese treasure the perfect blossom, but that in no way detracts from the beauty of the marred blossoms as soon they will all be withered regardless of beauty. Something to keep in mind the next time they are in bloom around the Washington Monument.

    So happy in that happiness is an internal state of mind, but tinged with a bit of mono no aware. For if there is anything in this world that is both ephemeral and beautiful, it’s love. And any thing that discourages love is a sadness upon the world. Love is a gender neutral affliction. It’s too bad those controlling our social support systems in the government can’t see the lesson of the cherry blossom in the the spring as the special interests and religious zealots have distracted them by whispering sweet nothings in their ears as the palms get greased.

    But me personally? Boy, I’m happy as a weasel in the henhouse I tell ya! We got good people protecting our chickens.

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