Friday, June 12, 2009

DOJ Defends DOMA

The Obama Administration has filed its Motion to Dismiss a challenge to DOMA in the US District Court for the Central District of California.  Despite the possibility that Obama would leave DOMA undefended from various challenges  (last discussed here), the Obama Administration's 54 page memorandum (download here) is a vigorous defense.  Here's the Argument outline:

I.    This Court Lacks Jurisdiction Over Plaintiffs' Claims Against
the United States Because the State Court Lacked Jurisdiction 

II.     Plaintiffs' Claims and Allegations Against the United States
Must Be Dismissed for Lack of Standing
        A. The Case or Controversy Requirement of Article III
        B. Plaintiffs Lack Standing to Challenge DOMA's Reservation
of the States' Authority Regarding Recognition of
Same-Sex Marriages Performed in Other States .
        C. Plaintiffs Lack Standing to Challenge the Definitions
of "Marriage" and "Spouse" Under Federal Law
        D. Plaintiffs Cannot Establish Standing to Seek Certain
Sweeping Relief Requested in Their Complaint 

III. DOMA Is a Valid Exercise of Congress's Power
under the Full Faith and Credit Clause
        A. Section 2 is Consistent With Common Law Conflicts Principles
        B. Section 2 Was Enacted Under Congress's Authority to Prescribe
the "Effect" of One State's Acts in Other States

IV. DOMA Cannot Be Said to Violate an Asserted "Right to Travel"

V. DOMA Is Consistent with Equal Protection and Due Process Principles
        A. Federal Courts Have Unanimously Upheld the Constitutionality of DOMA
        B. DOMA Does Not Impinge Upon Rights That Have Been Recognized as Fundamental
        C. DOMA Does Not Rest on a Suspect Classification
        D. DOMA Satisfies Rational-Basis Review

VI. DOMA Does Not Violate the Right to Privacy
VII. DOMA Cannot Be Said to Infringe Upon any Rights of Speech
VIII. DOMA Cannot Be Said to Infringe Upon any "Right" under the Ninth Amendment

The use of two precedents are especially interesting.  First is the argument regarding Loving v. Virginia:

There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little  difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11.  No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. [citation omitted].  In upholding the traditional definition of marriage,numerous courts have expressly rejected an alleged analogy to Loving. See, e.g., Kandu, 315 B.R. at 144 ("[T]he Supreme Court did not hold [in Lawrence] that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis."); Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999) (rejecting claim that "defining marriage as the union of one man and one woman discriminates on the basis of sex"); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d at 187; see also Dean, 653 A.2d at 362-63 & n.2 (Steadman, A.J., concurring) ("It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples.").

Memo at 42.  Another interesting aspect is Obama Administration's distinction of Romer v. Evans:

unlike the Colorado amendment struck down in Romer, DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected." Romer, 517 U.S. at 634. DOMA simply preserves longstanding federal and state policies that have afforded protections and privileges to a traditional form of marriage, while simultaneously recognizing the right of States to extend such protections and privileges to same-sex marriage. Under our federalist system, preserving the autonomy of state and federal governments to address evolving definitions of an age-old societal institution is itself a legitimate governmental interest. Moreover, because DOMA protected "the ability of elected officials to decide matters related to homosexuality," including their right to recognize same-sex marriage, it plainly was not born solely as a result of animosity towards homosexuals.

Memo at 35.



This Motion to Dismiss and the legal arguments in the Memo are sure to garner attention, especially given Obama's (previous?) relationship with the LGBT community and progressive groups.  There is already a solid analysis on AmericaBlog.


Cases and Case Materials, Congressional Authority, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality, Standing | Permalink

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