Punishment sought for attorneys who abandon DOMA

By Bob Unruh

A campaign launched by a California civil and religious rights organization shockingly reveals that when Attorney General Eric Holder and President Barack Obama decided the federal Defense of Marriage Act was unconstitutional, many Department of Justice attorneys began working against their own clients, the citizens of the United States.

That’s according to the Pacific Justice Institute, which today announced a campaign to collect signatures of citizens willing to be part of state bar association complaints against DOJ attorneys.

“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,” said PJI chief counsel Kevin Snider. “These attorneys are now seeking to have judgment taken against the party that they represent – the United States.

Snider said what the DOJ has done would be “unthinkable for any other lawyers.”

Their actions raise “serious concerns that professional rules and ethics are being violated,” he said.

PJI plans to file complaints with various licensing agencies against the attorneys, whose names are listed online.

WND reached out to several of the attorneys cited and never was allowed beyond the office staff to even leave a message.

DOMA has become part of the collateral damage of Obama’s campaign to promote homosexuality, bisexuality, transexuality and other sexual lifestyles.

The law defines marriage as a relationship between one man and one woman for federal purposes.

However, in February 2011, Holder sent a letter to House Speaker John Boehner saying the DOJ, under Obama, would not defend DOMA any longer.

“There are times when a lawyer gets out of a case,” PJI reported. “When that is done, the attorney withdraws and another firm is substituted in as counsel. Initially, to his credit, the attorney general gave Congress the opportunity to intervene in the DOMA cases to defend the law.

“Acting through the Bipartisan Legal Advisory Group (BLAG), that is what occurred. BLAG hired a private law firm which has been defending the law in the courts, and even has filed papers with the U.S. Supreme Court to bring final resolution to this issue,” the institute said.

“That should have ended the DOJ’s involvement in the litigation. Shockingly, lawyers for the government stayed in the cases and began filing papers with the courts arguing against DOMA. In all but one of the cases, the department has filed papers stating that DOMA is unconstitutional.”

The implications are staggering, said Snider. Not only is it a case of a defense attorney  getting up, moving across the room and sitting down at the table for counsel for those suing the citizens of the U.S., but it creates the opportunity – if allowed to stand – for a president to veto any law he or she doesn’t like.

“This would give the executive branch a constructive veto over any law,” he explained.

Whatever already is on the books as a law of the United States of America, when challenged, simply could be allowed to fall, he said.

Snider warned of the “enormous power” such a precedent would grant presidents.

For example, he agreed, a president who objects to the income tax could order the IRS to stand down and not defend any tax laws. Default judgments would follow, and the tax laws would be struck.

When an administration previously determined a law to be unconstitutional, a procedure was set up for an intervenor to challenge it, and then a court would make the determination, he said.

In this case, complaints are being developed against more than 30 U.S. and Department of Justice attorneys who worked on 18 different cases.

“Government lawyers initially filed briefs defending DOMA, then abandoned that defense altogether and began filing papers in support of the plaintiffs in those cases,” PJI reported. They are being prepared for filing in 10 jurisdictions, including California, New York, Texas, Illinois, Pennsylvania, Virginia, Massachusetts, Connecticut, Oklahoma and the District of Columbia.

Those who are interested, or are willing to participate at no cost, need to visit NoWayDOJ.com to review the requirements.

“When the United States and its agencies are sued over the Defense of Marriage Act, the clients are not the president or the attorney general – the clients are the people of the United States,” noted Brad Dacus, president of PJI. “It is bad enough for the Department of Justice to abandon its clients, but it is unethical and sanctionable for those attorneys to switch sides and ask for judgment leading to damages and attorneys’ fees against their own clients. We are calling on state bar authorities to simply undertake the same investigations and disciplinary actions they would take against any other lawyers who flagrantly violate their duties of client loyalty.”

Snider said DOJ attorneys have filed pages and pages of legal arguments while “defending” DOMA that explain why the federal attorneys think the judge should rule against the law. Sometimes the attorneys representing the U.S. have asked the judge for a summary judgment – a decision without a trial – against their own clients.

Members of Congress recently went before the U.S. Supreme Court to ask for a review of a decision from the 1st Circuit Court of Appeals that declared the Defense of Marriage Act unconstitutional.

The request cites the “previously unknown standard of equal protection review” applied by the court and questions whether there is any conflict with the “equal protection component of the Due Process Clause of the Fifth Amendment.”

A friend-of-the-court brief has been filed by attorneys representing a long list of interested parties that suggests the Supreme Court justices should return to the Constitution, read it and apply it to the case.

Those represented in the brief say they are confident if that happens, DOMA will be affirmed as constitutional.

The petition urges the court “to grant the petition to review whether its various balancing tests, including strict scrutiny, intermediate scrutiny, and rational basis, are wholly unsuitable to the task of objective judicial review, as demonstrated by an illustrative review of this court’s decisions and the decision of the court below.”

“Unmoored from the constitutional text, this court’s tests have been, and if not abandoned will continue to be, used inconsistently by unelected judges in the unchecked exercise of raw legislative power.”

In that case, the Boston-based 1st Circuit ruled DOMA unconstitutional. The law denies same-sex duos federal benefits enjoyed by married couples, such as the ability to file joint federal tax returns and survivor benefits, as Congress intended.

“Congress, of course, did not invent the meanings of ‘marriage’ and ‘spouse’ in 1996. Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e., what Congress itself has always meant – and what the courts and the executive branch have always understood it to mean – in using those words: a traditional male-female couple.”

Now attorneys Herbert W. Titus, and others from the William J. Olson law firm, as well as Gary Kreep of the U.S. Justice Foundation have submitted a brief on behalf of the Capitol Hill Prayer Alert Foundation, the U.S. Justice Foundation, Citizens United, Citizens United Foundation, Young America’s Foundation, Public Associate of the U.S., Institute on the Constitution, Lincoln Institute for Research and Education, Gun Owners Foundation, Conservative Legal Defense and Education Fund, Virginia Delegate Bob Marshall, Virginia Sen. Dick Black, Abraham Lincoln Foundation for Public Policy Research, Protect Marriage Maryland and Declaration Alliance.



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