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July 07, 2011

ROUNDUP: Obama's DOMA Decision Outcomes

When President Obama and AG Holder decided that the government would no longer defend DOMA section 3 (the federal marriage definition, not the full faith and credit section, as has been erroneously reported in conservative media), I panned it as unjustifiable. It was obvious what the President was up to:

How is that a good plan? Well, it's a good plan if one wants to finally see the courts extend heightened scrutiny to cases of discrimination against gays and lesbians. To date the Supreme Court has been mum about just how much justification the federal government needs to have to discriminate against gays. Drew wrote about this issue in the context of the Prop 8 case; note that Gov. Schwarzenegger and AG Brown did the same thing as Obama and Holder: they continued to enforce Prop 8, even as they told the courts it was indefensible. How predictable then that the district judge concluded that discrimination against gays should be subjected to heightened scrutiny.

Let's review the past six days, shall we?

On July 1, DOJ filed a brief putatively on behalf of its client agency, the Office of Personnel Management, which had denied the request of a lawfully married federal employee to put her spouse, a woman, on her employer-provided insurance. The brief was "historic" in that not only did it advocate against its own client, it finally admitted that the "federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals."

On July 5, an Immigration Judge in Maryland reopened on her own authority a removal case she had previously concluded involving an alien lawfully married to a U.S. citizen of the same sex. There were two Obama Admin initiatives at work here. The first was DOMA: the judge noted that at the reopened hearing the parties should be ready to "address current policy and/or legal developments relating to the ability of same-sex spouses to benefit from visa petitions filed by United States citizen spouses." The second was ICE's new "prosecutorial discretion" memo.

Yesterday, the 9th Circuit granted Log Cabin Republicans' motion to lift the stay keeping Don't Ask, Don't Tell in place while that case proceeds on appeal. Log Cabin Republicans had argued that the Administration's DOMA position means DADT is also unconstitutional. Chief Judge Kozinski, the court's most outspoken conservative, agreed that given the government's new position it could not justify a stay. So, in case you missed it, DADT is dead as of yesterday, unless the Obama Administration appeals to the Supreme Court for a stay. I wouldn't hold my breath, guys.

Also yesterday, the U.S. Trustee, a statutorily-created "watchdog" within DOJ overseeing the bankruptcy process, withdrew the appeal from a Bankruptcy Court decision holding that DOMA sec. 3 unconstitutionally prohibits lawfully married same-sex spouses from filing joint bankruptcy. Apparently, the House Bipartisan Legal Advisory Group that Speaker Boehner set up to defend DOMA cases since DOJ won't declined to take the case. So the Trustee withdrew it. Meanwhile, the DOJ has notified all bankruptcy courts that it will no longer seek to dismiss bankruptcy petitions filed jointly by lawfully married same-sex debtors.

This won't be the end.

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posted by Gabriel Malor at 11:37 AM

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