The Obama Administration responds to DOMA uproar

Obama 2008 Thursday, The U.S. Justice Department moved to dismiss the first gay marriage case filed in a federal court, arguing that the specific legal questions raised by the couple do not belong in federal court….

In their brief the Obama Administration argued that the courts shouldn’t consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases, that the Supreme Court decisions of Roemer and Lawrence shouldn’t be interpreted to give us rights in any other area, that DOMA doesn’t discriminate against Lesbian and Gay couples because it also discriminates about straight unmarried couples, and invoked incest and people marrying children…

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA.

Now here is the official White House response sent to Lez Get Real yesterday about the Obama Justice Department’s decision to defend the Defense of Marriage Act in court…

“As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The President has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”

Presidents Bush, Reagan and Clinton all filed briefs in court opposing current federal law they considered unconstitutional. Obama could have done the same. This case should say it all about him…. obama-hope-shelter-copy-500x752_phixr-199x300