Wednesday October 13, 2010

Obama Justice Department Appeals DOMA Rulings

By Peter J. Smith

BOSTON, October 13, 2010 ( – The Obama Justice Department on Tuesday filed a terse notice to a federal appeals court in Boston that it is appealing a U.S. district judge’s ruling striking down the 1996 Defense of Marriage Act.

The appeal notice submitted by Assistant Attorney General Tony West does not mention any reasons for the United States’ defense of the 1996 federal statute, which defines marriage as a union of a man and a woman under federal law. It also protects states from having to recognize marriages performed in other states that would not be valid within their own respective jurisdictions.

The Department of Justice (DOJ) is challenging the rulings of U.S. District Court Judge Joseph Tauro, who gave two separate opinions in July, Massachusetts v. Health and Human Service and Gill v. Office of Personnel Management, that DOMA violates the principle of equal protection guaranteed in the Fifth Amendment of the U.S. Constitution. (see coverage)

Tauro said that DOMA constitutes “irrational prejudice” and “encroaches upon the firmly entrenched province of the state,” violating the Tenth Amendment.

Massachusetts Attorney General Martha Coakley sued in the Massachusetts case, and the Gill case was brought forward by the Gay and Lesbian Advocates and Defenders (GLAD).

Although President Barack Obama says he supports a repeal of DOMA – a goal shared by his many allies on the left and in the homosexual movement – he has advocated for a legislative solution in Congress. This has chagrined many of his supporters who view the federal courts as the fastest and surest way to repeal DOMA.

“The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged,” said Tracy Schmaler, the DOJ’s spokeswoman in a statement. “As a policy matter, the president has made clear that he believes DOMA is discriminatory and should be repealed. The Department of Justice has a long-standing practice of defending federal statutes when they are challenged in court, including by appealing adverse decisions of lower courts.”

However, both defenders and opponents of DOMA point out that not all U.S. administrations have defended federal laws they disagreed with or thought were unconstitutional.

Andy McCarthy of National Review Online noted that in the Dickerson v. United States (2000), the Clinton-Reno DOJ refused to defend a little-enforced statute (18 U.S.C. § 3501) enacted by Congress in 1968 intended to overturn the U.S. Supreme Court’s ruling in Miranda v. Arizona (1966). Miranda established that criminals in custody needed to hear certain warnings first from police before interrogation, in order for statements made during interrogation to be admissible as evidence in court. Instead the U.S. Supreme Court had to bring in a 3rd party, conservative law professor Paul Cassell, to argue that Miranda was a flawed ruling which Congress had the right to correct.

See related coverage by

Judge Orders Military to Stop Enforcement of ‘Don’t Ask, Don’t Tell’

Federal Judge Rules Fed Gay ‘Marriage’ Ban Unconstitutional

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