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President Obama, who simply said his administration would stop defending the federal Defense of Marriage Act because he doesn’t like it, effectively has admitted in a court brief that the law that says for federal purposes only marriage between one man and one woman will be recognized as constitutional.
That’s from the Alliance Defending Freedom, a premiere civil and religious rights legal team that analyzed the Obama team’s filings in a challenge now pending before the U.S. Supreme Court.
The defense of the federal law has been taken up by others, since Obama, and his attorney general, Eric Holder, announced they simply were abandoning the law approved by Congress and signed by President Clinton.
Pending before the U.S. Supreme Court, it is considered critical to the future of the nation.
“The natural family is fundamental to our very existence,” Mathew Staver, founder of Liberty Counsel, said as his organization filed friend-of-the-court briefs.
“Thriving societies need healthy children who grow up into responsible citizens,” he said. “Healthy children require committed parents who will sacrifice their own desires for the well-being of their children. This is all created within the context of natural marriage between one man and one woman.”
His organization filed briefs in U.S. v. Windsor, which challenges the federal Defense of Marriage Act.
It was in February 2011, Obama instructed his Justice Department to stop defending the constitutionality of the Defense of Marriage Act in court.
Now the Department of Justice has filed a brief in the dispute, and Obama’s officials argue that it is unconstitutional under the “heightened constitutional scrutiny” standard.
The analysis explains, “The Department of Justice does not challenge DOMA under traditional rational-basis analysis, which is the appropriate constitutional standard and the standard that the court applied in Romer v. Evans (an equal-protection challenge based on ‘sexual orientation’).” the group said. “Thus the Department of Justice effectively concedes that DOMA is constitutional. That is the only reasonable conclusion under rational-basis review, for opposite-sex couples generally further the state’s procreative purposes for marriage while same-sex couples do not.”
The explanation continued, “The Department of Justices’ argument that DOMA is unconstitutional ignores that laws like DOMA, which affirm marriage as the union of one man and one woman, rationally distinguish between same-sex couples and opposite-sex couples, and that this biologically based distinction is rooted in the reality that only opposite-sex couples naturally procreate. DOMA is constitutional for this reason because the Constitution requires only that the government treat similarly situated persons similarly. The government is not required to engage in gestures of superficial equality or otherwise pretend that different things are the same.”
The ADF said while the DOJ claims “sexual orientation” should be treated like race or sex – triggering that heightened constitutional scrutiny – that’s not within reality because “‘sexual orientation’ is not an immutable or well-defined characteristic, as admitted even by scholars of that issue who support redefining marriage.”
“Moreover, gays and lesbians wield tremendous political power, as is abundantly apparent by, among several other things, this brief filed by the Department of Justice and the most recent elections where a majority of citizens in Maine, Maryland, and Washington voted to redefine marriage.”
The ADF said the DOJ also argues that promoting responsible procreation is not really an important governmental objective.
“The Supreme Court has made clear that defining marriage as the union of one man and one woman is constitutional as a matter of public policy. Thus, Congress and President Clinton acted constitutionally when DOMA was enacted. The wisest course is for the Supreme Court to resist demands to prematurely end the national debate over the future of marriage. The court should respect the freedom of both Congress and citizens to affirm a bedrock social institution that diverse cultures and faiths have honored throughout the history of Western Civilization,” said Austin Nimocks, senior counsel for the ADF.
The arguments are expected before the Supreme Court within a few weeks.
Obama’s stunt in simply ordering that a law he doesn’t like be ignored was cited by legal experts as one of several reasons that impeachment proceedings could be initiated against the Democrat.
It was because Obama had Holder release the following statement in February 2011:
“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the Department not to defend the statute in such cases. I fully concur with the president’s determination.”
U.S. House leaders then instructed their own counsel to defend the law.
Rep. Trent Franks, R-Ariz. has raised the possibility of impeaching Obama over his refusal to defend DOMA. Former House Speaker Newt Gingrich said Congress should “confront” Obama, “threatening to zero out” the budget at the attorney general’s office until the president decides to defend DOMA.
“This is a classic example of the president assuming the powers of the English king. The English king claimed to have the prerogative to dispense and suspend the laws. [T]here’s no question that our founders did not believe that they had delegated the power to the president to suspend or dispense with the law. They gave him specific power to veto, and that was limited. And the ‘take care that the law is faithfully executed’ is a kind of limit upon the power of the president, rather than a broad, sweeping power,” said Herb Titus, a constitutional law professor and attorney who has worked on a multitude of constitutional issues.
The positional change instructed by Obama also has created issues for several federal lawyers involved in various DOMA cases. Officials with the Pacific Justice Institute, which earlier announced a campaign to hold federal prosecutors accountable for their abandonment of their clients, the U.S. taxpayers, have filed a bar association complaint against U.S. Attorney Melinda Haag for that.
PJI chief counsel Kevin Snider said government lawyers “are essentially rising from the table for counsel for the defendant, walking across the courtroom and sitting down at the plaintiff’s table.”
“These attorneys are now seeking to have judgment taken against the party that they represent – the United States,” Snider said.
He said what the DOJ is doing would be “unthinkable for any other lawyers.”