As I promised yesterday here is my entry on Obama and DOMA. Some of the information will be old for those following the story but hopefully a few new things as well. Enjoy.

The Defense of Marriage Act (DOMA) was signed into law by Bill Clinton on September 21, 1996. It stipulates that the federal government defines marriage as between one man and one woman and that states do not have to recognize same-sex marriages that took place in other states. The bill passed the House 342-67 and the Senate 85-14, indicating a lot of Democrats voted for this 118 and 32 respectively, in fact. It is an interesting exercise to go back and see how many “liberal” Democrats voted for DOMA.

As a candidate Obama said that he opposed same-sex marriage but supported civil unions and pledged to repeal DOMA. But on June 11, 2009, Obama’s Justice Department filed a notice to dismiss in a challenge to DOMA mounted in federal district court in California (Central District Southern Division). The case is Arthur Smelt and Christopher Hammer v. US. The couple were married in California at a time when same-sex marriage was legal. It is not a good challenge for the reasons, which the government notes (p.13 of pdf), that they

lack standing to challenge either Section 2 or Section 3 of DOMA. Plaintiffs lack standing to challenge Section 2, because they nowhere allege that they have actually been denied any rights or benefits under the laws of another State resulting from the refusal of that State to acknowledge their marital status. They lack standing as well to challenge Section 3 of DOMA, because they do not allege that the federal definitions of “marriage” and “spouse” in Section 3 have ever been applied to them for purposes of any federal law.

But even a cursory glance through the brief’s table of contents shows sweeping arguments that clearly overreach:

DOMA is a valid exercise of Congress’s Power under the Full Faith and Credit Clause
DOMA is consistent with Equal Protection and Due Process Principles
DOMA does not impinge upon rights that have been recognized as fundamental
DOMA satisfies rational-basis review
DOMA does not violate the Right to Privacy
DOMA cannot be said to infringe upon any “right” under the Ninth Amendment

The fact is that all of these gay rights cases fundamentally violate the Equal Protections Clause of the 14th Amendment, that these laws are inherently discriminatory and there can never be any rational basis for them, that they can never serve any public interest, and that the Right to Privacy springs directly from the often overlooked 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

All this is bad enough but in a really egregious passage Obama’s DOJ lumps same-sex marriage in with incestuous and underage marriage in the now infamous passage:

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[at] 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”).

Reeling from the bad press on this, on June 17, 2009, Obama announced a hastily put together Presidential memorandum (weaker than a directive because it only remains in force for the length of the Obama Presidency) extending federal benefits (such as sick leave) to same-sex couples and his support for the Domestic Partners Benefits and Obligations Act.

Obama said

It’s a day that marks a historic step towards the changes we seek, but I think we all have to acknowledge this is only one step. Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it’s discriminatory, I think it interferes with states’ rights, and we will work with Congress to overturn it.

DOMA as an assault on states rights is a really lame argument since DOMA allows states not to accept the same sex marriages of other states. Still it remains to be seen if Obama means any of this or if it is just PR. Will he fight for the Domestic Partners Benefits bill? Will he, as he has not yet done, send up a bill to Congress to overturn DOMA? Will he fight for that? Because as things currently stand, his DOJ is set to go into court on August 3, 2009 and push for the dismissal of the Smelt-Hammer challenge to DOMA.

Item 49 of my Obama scandals list (current total 63 entries)