Obama's Law Professor - Laurence Tribe - Says DOMA Unconstitutional

[jefferson_dem]

Obama's Law Professor Says DOMA Unconstitutional

A campaign is underway to encourage the Department of Justice to refuse to defend the Defense of Marriage Act in the legal challenge launched by the Massachusetts based Gay and Lesbian Advocates and Defenders.

On a grassroots level, individuals are sending bright pink postcards to Obama urging him to not "flip flop" on DOMA (the President committed to repealing DOMA during his campaign, but has since erased all mention of the repeal from the White House website).

Today, Laurence Tribe, the Harvard Constitutional law professor who hired Obama as a research assistant in his first year of law school, supported the claim that DOMA Section 3 is unconstitutional.

Professor Tribe told Paul Sousa, founder of Equal Rep:

"I certainly agree (a) that Section 3 of DOMA is unconstitutional, at least as applied to couples like those who are currently challenging it in federal court here in Massachusetts.... I'm not at all reluctant to have it known that I think the equality component of the Fifth Amendment's Due Process Clause forbids the federal government to deny same-sex spouses benefits identical to those that it would grant to opposite-sex spouses when the spouses are "married" under the law of their state -- that is, when the spouses were married and reside in states where the law forbids a distinction between same-sex and opposite-sex marriage and rejects the DOMA definition of 'marriage.'"

A legal memo supporting the Department of Justice's right to refuse to defend clearly unconstitutional laws can be found on the DOMA Flip Flop website.

The Department of Justice has until June 29th to decide whether to defend DOMA against the GLAD challenge.

http://www.huffingtonpost.com/emma-rubysachs/obamas-law-professor-says_b_211854.html

[Manifestor_of_Light]

1. there are four reasons why it's unconstitutional.

Equal protection clause
Due process clause
Full faith and credit clause

No ex post facto laws.


Simple.

[jefferson_dem]

5. Agreed.

It's obvious that Congress cannot insert a mammoth loophole into the Full Faith and Credit Clause. I think it's only a matter of ripeness before the Court must confront this reality. ...We're almost there.

The bonus is...by the time we do get there, and the Court overturns DOMO, the public will be in no mood for the Federal Marriage Amendment the fundies have canned and ready. :)

[TheWraith]

10. I don't think this counts as ex post facto, but the other items are dead on. nt

[Cha]

2. Oh yeah? Just the

day when John McHugh was nominated for Sec of Army, it was mentioned that
he wanted DADT changed just like Obama did.

[TheWraith]

11. To fix DADT, DOMA has to go too.

DOMA bans the federal government from recognizing any gay marriage. If gays are allowed to serve openly, then pretty soon married gays will, and they'll need to get married couple benefits.

Or you could flip it around, and have a suit by a gay, married serviceperson be the equal protection grounds for tossing DOMA. But either way, they're inextricably linked.

[sohndrsmith]

20. According to what I've read re: NJ civil union, entering into such

means risking discharge from service. That's a specific example, obviously, but - bottom line - you're right.

When same-sex marriage is legal and indistinguishable from hetero marriage, DADT is on it's way to oblivion.

Do the individuals recognized within the 18 thousand or so same-sex marriages deemed legal and legitimate in CA have to follow DADT if they are in the military?

This is beyond absurd that we treat any of our citizens this way, much less those who fight - and die - for our freedoms.

[katandmoon]

3. Does anybody think DOJ won't defend DOMA? I don't.

[TheWraith]

9. Of course they would. The DOJ is required to defend US Code.

Bush administration aside, the government does not have the choice of what laws to obey and what ones not to.

[depakid]

13. Nope-

There's no duty on the executive's part to defend a statute where no reasonable or colorable claim can be made in support of its constitutionality.

[ruggerson]

14. not true

there is plenty of precedent for them not to defend the law.

[sohndrsmith]

18. Have they read Title 42, Chapter 21, Section 1 (or more)? n/t

[ClarkUSA]

4. McHugh's statement, now this from Pres. Obama's top legal mentor. Hmmm...

[sohndrsmith]

6. He's right. That we're even debating it is what baffles me. K + R

Civil unions don't cut it, either. They aren't the same.

"Marriage" has no legal requirement related to religion, so I'm confused as to why the term "civil union" is NOT interchangeable with "marriage".

Speaking from personal experience, my partner and I showed up at our town hall in regular mildly-dressy clothes. We stood in a linoleum tiled hallway lit with florescent lighting set in an every day office-like drop ceiling in a VERY ugly building (that used to be the county's mental health agency). Our mothers were there, and the Judge (or justice - I can't recall) had to go get his secretary to sign as a witness because we didn't have enough people there.

There was no church, no religious official, no priest, no sign of theology anywhere. But the whole thing ended in our getting a legal marriage certificate.

I always thought of it as a civil union. Apparently, I was wrong about that, because everything I've read about civil unions says that one requirement is that the couple must be of the same sex. Seems to me the argument could be made that this is discriminatory against heterosexual couples (not that anyone is going to bother with this - since civil unions have such significant limitations compared to "marriage".

Gay/lesbian people have been getting legally married for eons - they've just had to marry a person of the opposite sex. Sort of a historical/social version of DADT on a certain level. Does anyone wonder how many of THESE marriages ended in divorce? Some, like my father, tried to reject his sexuality, yearned to be "normal" and perhaps even thought he could transform himself. He, like many, many people - wanted a family, wanted children, loved my mother (but eventually, understood that this love was different), and I'm personally grateful for his having the same dreams that most of us have, because I exist as a result. But there were years of discord, and I'm sure even more years of private, personal torment and pain my father felt - my mother too...

Imagine if heterosexual people were forced to marry people of the same gender if they wanted the union to be legal? Would we be having this argument?

California shot itself in it's proverbial Prop 8 foot when it ruled that "these" 18 thousand gay marriages were legal and valid, but everyone else is out of luck. I can only hope that was almost done on purpose...

[TheWraith]

7. Patience. Common sense is surprisingly uncommon.

The fact is that most people simply can't or won't see it that clearly. That's why the continued hammering away with education and gradual social attitude changes are so important.

[sohndrsmith]

12. Agreed. As more states figure things out, I personally think

it's not a matter of "if" but a matter of "when". I still reserve the right to be incredulous that the debate (and screwy laws) exist at all and not a chapter in history books that bored children are assigned to read. : )

[jody]

8. OK, Tribe says the 5th applies but that only applies to federal laws until iff SCOTUS says it's

incorporated in the 14th Amendment.

The idea that same-sex marriage is an "inalienable right" was argued by CA Attorney General Brown before the CA Supreme Court. The court rejected his argument under CA's constitution.

See Brown's brief at http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/agresponse.pdf

See Court's opinion at http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF

[ruggerson]

15. USSC precedent says marriage is a fundamental "right"

So, presumably, if the current court believes that stare decisis holds in the case of marriage, then a federal case, such as the one being brought in MA or the one being brought in CA, should ultimately prevail.

http://en.wikipedia.org/wiki/Loving_v._Virginia

[jody]

24. SCOTUS said the individual right to keep and bear arms for self-defense is protected by the

2nd Amendment, a pre-existing right that does not depend upon our Constitution for legitimacy, see D.C. v. Heller decided June 26, 2008.

Six months later, Sotomayor et al rejected the 14th Amendment's incorporation doctrine for the 2nd Amendment, see Maloney v. Cuomo decided January 28, 2009.

RKBA is an enumerated right protected by our Constitution but if judges like Sotomayor say it is not protected at the state level by the 14th, it would be extremely hypocritical of them to hold that an unenumerated right like same-sex marriage is protected by the 14th.

That would immediately pit gun-owners who make up over 40% of the 210 million electorate against 4% of that same population who in exit polls in the last election said they are gay or lesbian.

Such a decision would be blamed on the Democratic Party and would not help us maintain control of congress.

[ruggerson]

16. Thanks JD, I posted about this the other day and asked people to write the WH

k/r

[MasonJar]

17. Obama and Holder have stood by every other ignorant government

legal battle. Why should we expect this to be any different?

[Thrill]

19. Thats because people fail to stand up and force the Senate to confirm Dawn Johnson

Not much will change until she is at the Justice Department. The OLC is vital to any change there. I can't seem to get people to realize how important she is. Why do you think its so hard to get her confirmed??

The President doesn't sit around deciding which cases the Justice Department should take up.

[ruggerson]

21. The Mass case has enormous ramifications as it could be another Loving

I disagree with your assessment; the White House is going to be involved in this decision.

[Thrill]

22. The OLC will have a bigger role

They give the DOJ Legal Opinions

[babylonsister]

23. Good. Rec'd. nt