Tag archives: DOMA

Supreme Court’s Refusal to Redefine Marriage Nationwide Allows American People to Consider Consequences of Redefinition

by FRC Media Office

June 26, 2013

WASHINGTON, D.C.- Family Research Council President Tony Perkins released the following statement in response to today’s U.S. Supreme Court rulings on marriage:

While we are disappointed in the Supreme Court’s decision to strike down part of the federal Defense of Marriage Act (DOMA), the court today did not impose the sweeping nationwide redefinition of natural marriage that was sought. Time is not on the side of those seeking to create same-sex ‘marriage.’ As the American people are given time to experience the actual consequences of redefining marriage, the public debate and opposition to the redefinition of natural marriage will undoubtedly intensify.

We are encouraged that the court learned from the disaster of Roe v. Wade and refrained from redefining marriage for the entire country. However, by striking down the federal definition of marriage in DOMA, the Court is asserting that Congress does not have the power to define the meaning of words in statutes Congress itself has enacted. This is absurd. The Defense of Marriage Act imposes no uniform definition of marriage upon the individual states. However, the states should not be able to impose varying definitions of marriage upon the federal government. The ruling that the federal government must recognize same-sex ‘marriages’ in states that recognize them raises as many questions as it answers. For example, what is the status of such couples under federal law if they move to another state that does not recognize their ‘marriage?’ This decision throws open the doors for whole new rounds of litigation.

We are disturbed that the court refused to acknowledge that the proponents of Proposition 8 have standing to defend Proposition 8. This distorts the balance of powers between the legislative, executive, and judicial branches of government. The Court’s decision allows the executive branch to effectively veto any duly enacted law, simply by refusing to defend it against a constitutional challenge. Ironically, by refusing to defend the law, California’s executive branch has also denied the nation any definitive ruling on the constitutionality of defining marriage as the union of one man and one woman.

What is inevitable is that the male and female relationship will continue to be uniquely important to the future of society. The reality is that society needs children, and children need a mom and a dad. We will continue to work to restore and promote a healthy marriage culture, which will maximize the chances of a child being raised by a married mother and father,” Perkins concluded.

Perkins will discuss the Court’s decision today on his daily radio show, Washington Watch, heard daily from 5-6 p.m. Eastern on the American Family Radio network and online at www.TonyPerkins.com.

FRC’s Ken Klukowski, J.D. attended oral arguments. He co-authored a legal brief in the marriage litigation. FRC’s Chris Gacek, J.D., Ph.D., worked with Paul B. Linton, J.D. of the Thomas More Society on FRC’s amicus briefs in the DOMA and Prop 8 cases.

FRC’s Defense of Marriage Act amicus brief: http://www.frc.org/legalbrief/amicus-brief-us-v-windsor

FRC’s Proposition 8 amicus brief: http://www.frc.org/legalbrief/amicus-brief-hollingsworth-v-perry

Oral Arguments on DoMA at the Supreme Court Today

by Chris Gacek

March 28, 2013

There is a great deal of news today about the oral arguments at the Supreme Court regarding the Defense of Marriage Act (DOMA).  If you would like to read some good background information on DOMA, read the PDF of FRC’s 2010 pamphlet on the statute.  Learn why it was enacted, what it does, and why it is constitutional.  

Bork-NRO piece on Holder Non-Defense of Doma; Illinois Doing the Same

by Chris Gacek

June 18, 2012

Looking through some old issues of National Review I found an excellent opinion piece by Judge Robert Bork (3/21/11) destroying the Obama Administrations Feb. 2011 decision to no longer defend the Defense of Marriage Act (DoMA) in court. It may be that the institutional support of the Solicitor General’s office would still have helped, but Speaker John Boehners decision to defend DoMA using former Solicitor General Paul Clement has certainly minimized any damage. Bork’s powerful history lesson is worth reviewing as DoMA heads to the Supreme Court.

More recently, it should be noted that the Illinois attorney general, Lisa Madigan, is pulling a maneuver similar to Holders (and California Jerry Browns) that is, refusing to defend that states marriage law. See article.

Chicagos Thomas More Society’s June 14 press release on the decision of the Cook County States Attorneys office to also not defend the states valid marriage law states in part:

We are disappointed in the Cook County States Attorneys office for not defending this valid law, passed with broad bipartisan support in the General Assembly. While the plaintiff couples in the case are from hundreds of miles outside of Chicago, Lambda Legal and the ACLU sued only the Cook County Clerk and excluded from the case the local clerks for these couples. Todays announcement by States Attorney Alvarez makes it clear that this lawsuit was an inside job from the beginning, a crass political move to force same sex marriage on all Illinoisans without providing the residents of the other 101 counties an opportunity to be heard. The Thomas More Society is preparing legal papers to defend the law and prevent this collusive end run around the will of the people of Illinois and their General Assembly.

 

House Seeks to Intervene in First Circuit Defense of Marriage Act

by Chris Gacek

May 24, 2011

On Friday, May 20th the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives filed a Motion for Leave to Intervene…. with the U.S. Court of Appeals for the First Circuit in two cases that had challenged the constitutionality of the Defense of Marriage Act (DoMA). For a copy of the filing, go here [PDF]. The lead attorney defending DoMA for the House is Paul Clement, former Solicitor General of the United States.

In its filing, the House states that the Department [of Justice] now refuses to defend the statute from the equal protection and due process challenges to DoMAs constitutionality (pp. 9-10). Thus, unless the House is permitted to intervene in the case, the desire of the House to have a constitutional defense of DoMA offered to the court will not be met. The Court of Appeals will now have to rule on whether it will grant the Houses motion.

Same-Sex Marriage Is Not Legal Under Federal Law. Ever. At Any Time.

by Peter Sprigg

May 17, 2011

Christianity Todays Politics Blog featured an article on May 13 by Tobin Grant with the unfortunate headline, Is Same-Sex Marriage Legal Under Federal Law? Maybe. Sometimes.

This headline is entirely wrong. Same-sex marriage is absolutely, unequivocally not legal under federal law. Ever. At any time.

That is because of a federal law known as the Defense of Marriage Act (usually abbreviated DOMA). Public Law 104-199 was passed by overwhelming bipartisan majorities in both houses of Congress (342-67 in the House, 85-14 in the Senate), and signed into law by President Bill Clinton on September 21, 1996.

One part of the Defense of Marriage Act provided that states could not be obligated to recognize same-sex marriages contracted in other states.

The other key provision of DOMA (found in Section 3 of the bill), now under challenge in several courts, defines marriage for all purposes under federal law. It states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.

This statute (now codified in Title I, Chapter 1, Section 7 of the United States Code) has never been repealed. It has never been struck down by the U.S. Supreme Court. It is the law. And it is unequivocal in forbidding federal recognition of same-sex marriage.

What Grant actually describes is not any ambiguity about the state of the law, but rather the duplicity of the current administration under President Obama and Attorney General Eric Holder. It is no secret that Obama would like to see DOMA repealed, but Holder has stated that in the meantime, Section 3 will continue to be enforced by the Executive Branch.

Holders actions, however, have belied those words. The latest example, described in Grants blog post, was Holders decision to overturn a decision by the Board of Immigration Appeals, which had ruled against an application for resident status by an Irish man who entered into a civil union with an American in New Jersey. Holder asked the Board to consider the case again, and determine whether, absent the requirements of DOMA, respondents same-sex partnership or civil union would qualify him to be considered a spouse under the Immigration and Nationality Act. This is irrational, given that the requirements of DOMA are not absent, and it is utterly hypocritical when viewed in light of Holders promise to continue enforcement of DOMA.

In addition to the misleading headline, there is one other part of Grants blog post that requires some careful fact-checking. It is this paragraph:

One reason for the controversies is that the Department of Justice is opposed to the law. The opposition, however, only applies in certain jurisdictions. Contrary to headlines, the Department of Justice will defend DOMA in some courts. In February, Attorney General Eric Holder informed the Congress that the Department of Justice is opting out of defending DOMA in the U.S. Court of Appeals for the Second Circuit. In other words, the DOJ will no longer defend the act if a gay couple appeals a decision in New York, Connecticut, or Vermont, but it will defend the act in other states.

Really? I have not hesitated to accuse the Attorney General of hypocrisy with regard to DOMA, but not with quite such a level of hypocrisy that they would argue in one court that a law is unconstitutional while simultaneously arguing in another court that it is not. Yet that is what Grant appears to be stating is the current stance of the Justice Department.

I think Mr. Grant has mis-read (or perhaps not read all of) Mr. Holders letter to Congress on February 23. The very opening sentence of that letter reads,

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.

This amounted to a reversal of position for the Justice Department, which had defended DOMA, in the past, in other cases. For example, a federal district court judge in Massachusetts last year declared DOMA unconstitutional in a pair of cases, which are now on appeal to the First Circuit. The Justice Department filed briefs defending DOMA in those cases as recently as January 13 of this year.

To understand why the administration reversed its position, you must understand the different standards for deciding equal protection casesrational basis vs. heightened scrutiny.

When a law creates a classification that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the constitutions guarantee of the equal protection of the law. However, most laws are judged under a rational basis test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, heightened scrutiny usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. Use of a heightened scrutiny standard increases the chances of a court striking down a legislative enactment.

Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases mentioned above) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on sexual orientation are subject only to a rational basis test. The DOJs briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the 2nd) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that classifications based on sexual orientation warrant heightened scrutiny. (It could be argued that defining marriage as the union of a man and a woman actually does not classify on the basis of sexual orientation at all, but that would require a separate blog post.)

Holder wrote, Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen (the two new Second Circuit cases).

What if the Second Circuit rejects the administrations heightened scrutiny argument? Holder stated,

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3s constitutionality may be proffered under that permissive standard.

Here, Holder appears to stand by the Departments previous arguments under the more lenient standardbut he could hardly have done otherwise without appearing utterly foolish. But to say this means the Department will defend the act at all, as Grant states, seems a stretch. Note, for instance, the use of the passive voicea reasonable argument … may be proffered, not that we will proffer such an argument.

Even before making the statement above, Holder declared, This is the rare case where the proper course is to forgo the defense of this statute.

Still, the focus in Holders letter on the newer Second Circuit cases might be seen as still leaving some ambiguity about the DOJs defense of DOMA in other courtsuntil you reach the penultimate paragraph of the letter. Here, he states,

I will instruct Department attorneys to advise courts in other pending DOMA litigation [emphasis added] of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The reason for the primary focus on the Second Circuit cases in Holders February 23 letter to Congress was one of timinghe concludes by warning Speaker Boehner (as the likely new defender of DOMA), A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011just sixteen days after the letter was sent. But courts in other pending DOMA litigation would be given the same statement.

The position of the administration on the defense of DOMA is now clearthe law violates the equal protection component of the Fifth Amendment and the proper course is to forgo the defense of this statute. As a result, the Department will cease defense of Section 3.

Tobin Grants claim that DOJs opposition [to DOMA] only applies in certain jurisdictions and that the DOJ … will defend the act in other states must be rated as incorrect.

The Legal Errors in A.G. Holders Refusal to Defend DOMA

by Chris Gacek

March 14, 2011

Paul Linton has worked with the Family Research Council in producing amicus briefs defending Proposition 8 (Californias traditional marriage amendment) and the Defense of Marriage Act (DOMA) (federal definition of marriage). He is one of the best writers on the constitutionality of one man-one woman marriage laws. Mr. Linton is Special Counsel with the Thomas More Society in Chicago.

Recall that Attorney General Holder announced on February 23rd that the Department of Justice would no longer defend DoMA from legal challenges going forward. On March 1st Mr. Linton completed a very powerful response to the arguments laid out by Attorney General in his letter to members of Congress. Lintons reply available below really knocks the props out from under the Administrations arguments.

Read and enjoy:

Linton_Resp to Holder-DoMA surrender_2011.03.01

The Future of the Defense of Marriage Act (DOMA)

by Peter Sprigg

March 4, 2011

The federal Defense of Marriage Act (DOMA) was enacted in 1996 by large bipartisan majorities in both houses of Congress and signed into law by President Bill Clinton. It ensured that states would not have to recognize same-sex marriages from other states, and that the federal government would recognize only the union of one man and one woman as marriage.

Yet now, DOMA is under the sharpest attack in its historydespite the fact that four federal courts have already upheld its constitutionality, and no federal or state appellate court has ever said that it violates the U.S. Constitution. In July 2010, however, a single federal District Court Judge in Boston, Joseph L. Tauro, ruled in a pair of cases that the federal definition of marriage in DOMA is unconstitutional. In November 2010, two more federal court challenges to DOMA were filed in New York and Connecticut. In total, there are no less than ten currently pending federal court cases which involve some form of challenge to DOMA. Here are some key questions and answers about the current status of this law:

Q: What did Attorney General Eric Holder announce on February 23 about the administrations position regarding the federal Defense of Marriage Act (DOMA)

A: In a press release and in a letter to Congress, Mr. Holder said that he and President Obama have concluded that one of the provisions of the Defense of Marriage Actthe one which limits the federal government to recognizing only marriages between one man and one womanis unconstitutional. This marked a sharp reversal, since the Department of Justice has submitted several briefs defending the constitutionality of DOMA in previous court cases.

This decision represents a shocking abdication of the Attorney Generals, and the Presidents, constitutional responsibility to take care that the laws be faithfully executed, and sets a dangerous precedent for future executive refusals to defend existing law.

Q: What motivated this change of position?

A: Politics likely played a major role, as the Obama Administration has been under intense pressure from pro-homosexual activists to stop defending DOMA. There is also evidence which suggests collusion between the Justice Department and attorneys who are challenging DOMA and the definition of marriage in court. Attorneys in the case of Perry v. Schwarzenegger, who seek to overturn Californias marriage amendment (Proposition 8) and establish a federal constitutional right to same-sex marriage, filed a Motion to Vacate Stay with the Ninth Circuit, containing detailed citations from the Attorney Generals letter, just hours after the letter was released.

Family Research Council has filed a Freedom of Information Act (FOIA) request for any communications between the DOJ and litigants and attorneys in this case or in the cases challenging DOMA in other courts.

Q: Hasnt President Obama opposed DOMA all along?

A: Yes, Mr. Obama favors the repeal of DOMA. However, it is possible to believe that a law represents bad public policy, while at the same time believing that it does not violate the Constitution. This had been the position of the Obama administration until February 23, 2011.

QHow can the Administration justify such an about-face?

A: Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases decided by Judge Tauro) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on sexual orientation are subject only to a rational basis testthe most lenient level of scrutiny, under which legislative choices are accorded the greatest deference. The DOJs briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the Second) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that classifications based on sexual orientation warrant heightened scrutiny.

Q: What does heightened scrutiny mean?

A: When a law creates a classification that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the Constitutions guarantee of the equal protection of the law. However, most laws are judged under a rational basis test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, heightened scrutiny usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. The Supreme Court has never said that this standard applies to sexual orientation. It would increase the chances of a court striking down laws which limit marriage or its benefits to the union of one man and one woman, such as DOMA.

Q: How did the Attorney General justify this call for heightened scrutiny.

A: Mr. Holder asserted that a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable. However, he cited only one source in support of this contentionone dated 1992. In a footnote, he further claims that discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed.

In fact the theory that there is a gay gene or that people are born gay has been largely discredited by science since the early 1990s. Studies of identical twins, such as one in the American Journal of Sociology in 2002, support the hypothesis that less gendered socialization in early childhood and preadolescence shapes subsequent homosexuality. And evidence that homosexuals can change has come even from Dr. Robert Spitzer, the psychiatrist who led the effort to remove homosexuality from the official list of mental disorders. In a 2003 study, Spitzer found that changes [in sexual orientation] … were not limited to sexual behavior and … self-identity. The changes encompassed sexual attraction … the core aspects of sexual orientation.

Q: Who can defend DOMA if the Justice Department refuses to?

A: The courts have long recognized Congresss vital interest in defending the constitutionality of its Acts in the rare circumstances that the Justice Department refuses to provide such a defense. This happens as recently as 1983 in INS v. Chadha. The Supreme Court made clear in the 1997 case Raines v. Byrd that individual members cannot assert these interests, as Congress can only act through resolutions passed by the majority. Either chamber may do so individually.

Q: What would it mean if DOMA were struck down by the courts?

A: The immediate result would be federal government recognition of same-sex marriages that are already legal in the state where they occurred. However, if the federal definition of marriage as the union of one man and one woman is found unconstitutional, it would be only a matter of time before the same definition at the state level would be struck downincluding in the 29 states that have put that definition in their own constitutions. This is exactly the remedy sought by the plaintiffs in Perry (the Proposition 8 case), which is now before the Ninth Circuit.

Q: What should be done now?

A: Congress must continue to defend DOMA in court, since the Justice Department refuses to do so. Bills to legalize same-sex marriage must be defeated in state legislatures, and additional state marriage amendments must be adopted defining marriage as the union of a man and a woman. These make it hard for any court to find that there is an emerging consensus in favor of same-sex marriage. Finally, pro-family groups actively involved in the defense of marriage in court, such as the Alliance Defense Fund, and others involved in filing and coordinating amicus briefs, such as Family Research Council, need financial support for these efforts.

It is quite possible that the issue of same-sex marriage will reach the U. S. Supreme Court in 2012 or 2013. Pro-family citizens and office-holders must speak now, or forever hold your peace.

The President’s Unconstitutional Two-for-One

by Rob Schwarzwalder

February 25, 2011

President Obama’s decision this week not to defend the Defense of Marriage Act (DOMA) in court demonstrates both contempt for the law itself and a disturbing arrogance concerning his own authority.

This action is not unique. As today’s Wall Street Journal notes, “The White House has apparently decided that it won’t enforce the unpopular parts of its health-care plan until after the 2012 election. The latest evidence is its decision not to slash Medicare Advantage, the program that Democrats hate because it lets seniors choose private insurance options.”

And this week’s decision regarding DOMA is not a new departure from allegiance to the law. As George Will wrote in 2009, “The Obama administration is bold. It also is careless regarding constitutional values and is acquiring a tincture of lawlessness.”

The President of the United States takes an oath when he assumes office, assuring us that he will “defend the Constitution of the United States.” That Constitution makes Congress the legislative body, not the Executive branch. Thus, when Congress passes legislation that is signed into law by the President, it becomes incumbent upon the President — as the chief constitutional law enforcement office in the nation — to defend it.

When this or any President refuses to defend any given law, he is placing himself above it. How, in principle, this distinguishes the United States from any tin-pot autocracy, where law is made by the fiat choices of an unaccountable dictator, escapes me. For that matter, why bother with having legislative (Congress) or judicial (the Supreme and other federal courts) branches if the President can simply choose to ignore defending laws he dislikes?

Family Research Council’s Senior Fellow Chris Gacek (JD, Virginia) notes that DOMA “affirms the power of each state to make its own decision as to whether it will accept or reject same-sex marriages created in other jurisdictions … The Defense of Marriage Act preserves the right of the states to govern themselves with respect to family law and domestic relations. DOMA impedes judicial activism regarding marriage and provides needed uniformity in federal law. It is an essential part of preserving traditional marriage in America.” In other words, as Quinn Hillyer writes in The American Spectator, “Without DOMA, state and local decision-making would be nil. In fact, the decisions of 49 states could be superseded by the decision of one state to allow such ‘marriages’.”

The rule of law is essential to the future of representative self-government in the United States. The future of marriage hinges, in large measure, on DOMA. President Obama has succeeded in undermining both this week.

  • Page 1 of 2
  • 1
  • 2
Archives