Friday, June 12, 2009


The U.S. Justice Department has moved to dismiss the first gay marriage case filed in federal court, saying it is not the right venue to tackle legal questions raised by a couple already married in California.

The motion, filed late Thursday, argued the case of Arthur Smelt and Christopher Hammer does not address the right of gay couples to marry but rather questions whether their marriage must be recognized nationwide by states that have not approved gay marriage.

[For the full article, see here

John Aravosis of Americablog, has a thorough, disturbing, and tragically predictable post about the Obama Administration essentially defending DOMA in this case in federal court.

The title of his post is Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children."

As of this time, his post is continually being updated, as he goes through the full 50 page brief filed by the Obama Administration. However, a small part of his post reads as follows:

We just got the brief from reader Lavi Soloway. It's pretty despicable. And before Obama claims he didn't have a choice, he had a choice. Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional (we'll be posting more about that later). Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was "abhorrent."

And, part of the 50 page brief from the Obama Administration reads as follows:

Plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no.

What happened to "Yes we can?"
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This legal brief is more hateful than anything I expected from an Obama administration. I knew in my gut he had contempt for us, but I didn't think he'd ever show it so boldly. Now there can be no doubt about where we stand with him (though, incredibly, some still do doubt). Gay people brought this situation on themselves. They became Obamabots. Even when he kissed up to Rick Warren and Donnie McClurkin, they put on blinders and refused to believe he was a bigot. They ignored reality, something they're very, very good at doing, and now once again, we're all paying the price for it!

Jerry Maneker said...

Hi Don Charles: This tactic by the Obama Administration should be a wake-up call to all LGBT people and allies that he is not, and never was, in favor of equality for Gay people. And all his campaign rhetoric about "change" was mere cynical opportunism. And the hope hitherto held by many Gay people and progressives who took a "wait and see" attitude toward his hoped-for intervention to move the struggle for equality forward, was and is just whistling in the cemetery he has reinforced for Gay people for the foreseeable future. Best wishes, Jerry.



Here are key excerpts of Dale Carpenter's analysis is the Department of Justice brief, taken from

"Of most interest is what the DOJ has to say about the due process and equal protection claims, rejecting just about every single variation of an argument that Gay-rights scholars and litigants have made over the past 30 years.

Fundamental right to marry that includes same-sex couples? Nonsense under the narrowest approach to such rights, as articulated by Chief Justice Rehnquist in Washington v. Glucksberg, who wrote that in evaluating a fundamental-rights claim, a federal court must follow tradition and tradition is to be understood as narrowly as possible.

The Loving analogy? Rejected. Strict scrutiny for laws discriminating against gays and lesbians? Unprecedented. Sex discrimination? Meritless. Romer v. Evans? That dealt with a comprehensive denial of rights, unlike DOMA. Lawrence v. Texas? That was a privacy case.

Ninth Amendment rights? No such thing.

Three specific points in the brief are especially noteworthy:

(1) The DOJ asserts that federal courts are precluded from even considering the merits of a constitutional challenge under the due process and equal protection clauses. DOJ brief, pp. 28-30. That's because, says the DOJ, 37 years ago the Supreme Court dismissed a claim for same-sex marriage for lack of a "substantial federal question" in a memorandum opinion, Baker v. Nelson. The case had arisen from the earliest constitutional challenge to a marriage law, in Minnesota in 1971. The state court concluded in a very brief and dismissive opinion, unsurprising for the time, that same-sex couples had no fundamental right to marry under the due process clause and that denying them marriage was not invidious discrimination under the equal protection clause. Agreeing with what same-sex marriage opponents have argued for years, the DOJ says the Supreme Court's summary disposition of the appeal decided the matter on the merits of the claims and binds the lower courts, whatever changes there might have been in the underlying doctrines over the years. My guess is that Gay-marriage litigants would argue that they are not presenting the same arguments made 37 years ago, even if the same constitutional clauses are invoked, that the circumstances ought to suggest a very narrow understanding of the "federal question" decided in 1972, that Baker did not decide all variants of equal protection and due process challenges to marriage laws, and that at any rate the DOJ did not need to make this argument.

(2) Much more surprising, the DOJ argues that denying marriage to same-sex couples is not even discrimination on the basis of sexual orientation:

Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

More bluntly put, the Obama DOJ is saying that DOMA doesn't discriminate against Gays and Lesbians because they are free to marry people of the opposite sex. No "homosexual" is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There's a nice boy across the street. It's identical in form to the defense of Texas's Homosexual Conduct law in Lawrence v. Texas: a law banning only Gay sex doesn't discriminate against Gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it's the official constitutional position of the Obama administration.

Jerry Maneker said...

Thanks so much for this, Don Charles. The Obama Administration threw everything but the kitchen sink to make its case, and no one should have any doubt that DOMA will not be repealed during his administration. Regarding same-sex marriage, he's no different than Bush. And he might well be no different than Bush when it comes to DADT, and all equal rights for LGBT people. And with his claiming June 2009 being "Gay Pride Month," he's cynical and two-faced at best. Best wishes, Jerry.


Remember, Jerry, politicians have at least FOUR faces!!! And with Obama being President, there's no telling how many mugs he's got.

Jerry Maneker said...

I absolutely agree, Don Charles! Even though he's been in office about 5 months, as far as I'm concerned he's more than shown how he can't be trusted to live up to his promises to Gay people while he was courting their votes and money. He might have been vacuous enough to believe that by calling June 2009 "Gay Pride Month" he would have mollified LGBT people, despite showing his contempt for them by not rescinding DADT and by his Justice Department's aggressive stance on this recent federal court case..

He's shown himself to be just another two-bit politician who looks after number one first and foremost.

I have no doubt that he has thrown Gay people to the wolves in order to realize his own political aspirations, and help assure his election in 2012. If nothing else shows this fact it's the tragedy of his not doing away with DADT which he could easily do right now; his support of DOMA as seen in this recent federal court case.

He lied to those of us who bought into those lies, hoping against hope that when he talked of "equality" and "change" he meant it. We were had, hook, line, and sinker, and I would have voted Third Party had I known what a phony he is.

The only difference between him and McCain is that McCain is more honest in expressing his values and in his politics! Best wishes, Jerry.