Late night roundup on Obama and the anti-gay DOMA brief

ABC on Obama anti-gay brief.

CBS:

It's true that the Justice Department is generally tasked with defending acts of Congress. Then again, Bill Clinton's DOJ refused to defend the abortion speech-related provisions of the 1996 Communications Decency Act, and a law mandating criminal penalties for giving paid Medicaid planning advice. Gay activist and Washington lawyer John Aravosis notes other examples of DOJ declining-to-defend.

If Mr. Obama felt strongly enough, or Attorney General Eric Holder believed DOMA was execrable enough, the DOJ could have taken a similar position in court here. At least the president could have coupled his administration's brief of DOMA with a speech calling on Congress to repeal it.

Neither, of course, happened....

The surprise should be that some supporters seem to have confused a politician's campaign promises with his actual policies.

MSNBC.

AP:

Lambda Legal's Pizer said the government's stance in some ways marks an improvement from Justice Department positions taken on the Defense of Marriage Act when George W. Bush was president.

Well yes, I supposed being compared to incest is a step up from being compared to bestiality. But geez. How could any gay group defend this brief?

The Advocate.

Village Voice.

Twitter got ugly today. Read More......

All cat Friday night

I didn't see any new keyboard cats that worked but I just love this one. The cats must be youngsters because I can't imagine ours doing anything like this. If anything, ours would be more like this, if not worse. But to be fair to our cat family, now that the sunshine has returned they're both back to sunning themselves on the terrace. Read More......

Mormon Bush holdover filed anti-gay DOMA brief today

Now we have a big problem. Andrew Sullivan discovered that one of the three Obama Justice Department attorneys who wrote and filed the anti-gay DOMA brief last night is W. Scott Simpson, a Mormon Bush holdover who was awarded by Alberto Gonzales for his defense of the Partial Birth Abortion act. Funny, on first reading the brief this morning, I wrote the following:

It's pretty despicable, and gratuitously homophobic. It reads as if it were written by one of George Bush's top political appointees.

And it was! At least a Bush employee. And a Mormon to boot.

No wonder the brief was so filled with hate and bigoted religious right talking points, such as comparing gay marriage to incest and pederasty. Obama let a Mormon Bush Justice Dept. employee create his public position on DOMA with the courts. This is really beyond the pale. I can't wait until Obama let's W. Scott Simpson write the brief in favor of overturning Roe v. Wade. Read More......

Senior Obama administration official suggests it's "reasonable" to compare gay marriage with incest

Keep digging folks.

"Note that the standard for defending a statute, once enacted, is lower than whether, in our judgment, it is constitutional," a senior administration official said. "It is whether there are arguments that can be made. The DOMA statute has been found constitutional by at least 6 courts and has never been struck down. Whatever we think, it would be pretty hard to say that there are not 'reasonable arguments' with that context."

Read More......

The gratuitousness

Andrew Sullivan:

[T]o file an actual brief re-stating some of the worst and most denigrating arguments against gay civil equality is just bizarre. They could have argued for a narrow ruling or kept the "reasonable" arguments to a minimum. What they did - without any heads up to any of their gay supporters and allies - is unconscionable. Citing incest precedents? Calling gay couples free-loaders? Arguing that our civil rights are not impinged because we can marry someone of the opposite sex? Who on earth decided that that was a great idea? Marc is right that this will be simply incomprehensible to most gay people. To have unloaded it after refusing to do anything on DADT, after failing to lift the HIV travel ban, after punting on even pure symbolism like hate crimes - well, it's no way to treat those who worked their butts off to elect you, as all the major groups have now said.... I'm baffled by this, I really am. The content of this brief is a massive political error from an administration that is making it impossible for its gay supporters to stay supportive. What's next? A Clintonian political ad boasting of these arguments?

Pam Spaulding:

This is a President who said he is a "fierce advocate" for our rights. This doesn't look much like an advocate, it looks more like an enemy pulling the pin on the grenade and tossing it at us. While this may not be the perfect test case for DOMA, the Obama administration, in its defense of the Act, has filed a brief that is a roadmap for every fundnut anti-gay argument against the right of same-sex couples to marry.... Friends, is this is the watershed mark, the line in the sand, the utter moral betrayal of this administration in black and white? Does this mean that we are not only expendable to this Administration, but that it has decided we can also be vilified as a constituency at will and not receive any blowback? That's balls. A brief with language like this could have been written by Liberty Counsel it's so homophobic; that it's written in legalese doesn't blunt the arguments being made here. It will be used to cause lasting damage to future civil rights gains.

David Link:

It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a “form” of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money. There are some respectable arguments in this motion, and this kind of disrespect is offensive.

Rea Carey, NGLTF:

Unfortunately, the malicious and outrageous arguments and language used in the Department of Justice's marriage brief is only serving to inflame and malign the humanity of same-sex couples and our families. This is unacceptable.

Jed Lewison, DailyKos:

[W]hether or not it was appropriate to defend DOMA, the DOJ did so with extraordinary zeal, making arguments that could only make Pat Robertson smile. (If you're looking for a bright side, at least the legal brief didn't compare same-sex marriage to bestiality.)

Read More......

Hey, at least they threw us a party

Remember when we were supposed to be thrilled that the President-elect included a "gay band" in the inaugural parade after picking a raging homophobe to give the prayer at his swearing in? Well, yesterday, the Department of Justice threw us a little Gay Pride party hours before they compared our relationships to incest and pederasty.

Maybe next year we'll get balloons too. Read More......

Gay groups decry Obama defense of DOMA

It's a pretty good statement, other than the inexplicable fact that they didn't mention Obama comparing gay marriage to incest and pederasty, which is arguably the most offensive part of the entire brief.

LGBT Legal And Advocacy Groups Decry Obama Administration's Defense of DOMA
FOR IMMEDIATE RELEASE: June 12, 2009
Contact: Paul Cates, ACLU

We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act against Smelt v. United States, a lawsuit brought in federal court in California by a married same-sex couple asking the federal government to treat them equally with respect to federal protections and benefits. The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.

We disagree with many of the administration’s arguments, for example that DOMA is a valid exercise of Congress’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.

When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.

Signed,

ACLU
GLAD
Lambda Legal
NCLR
HRC
NGLTF

Read More......

Loving v. Virginia (June 12, 1967)

Today is the 42nd anniversary of Loving v. Virginia, the Supreme Court case overturning Virginia's ban on inter-racial marriages. The Obama people, working for the product of an inter-racial marriage, sure have an eye for irony. Read More......

Obama DOJ lies to Politico in defending hate brief against gays

Ben Smith at Politico just reported the following statement from the Department of Justice over their brief, filed last night, comparing gay marriage to incest:

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.

Yeah, you see, that's an outright lie. Fortunately for you, and unfortunately for Justice, Joe and I are both lawyers. We suspected this betrayal was coming, so we read up on the law. In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta - "The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems."), Bill Clinton (Dickerson v. United States - "Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda.... Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court's Miranda cases."), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha - "Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.") all joined in lawsuits opposing federal laws that they didn't like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

But it's worse than that. Let's just assume for a moment that the Justice spokesman didn't lie to Politico, even though they did. Let's just assume that Obama had no choice but to oppose the gay couple filing this DOMA lawsuit. Where in the law does it say that Obama was required to compare gay marriage to incest?

And putting that little bit of religious right messaging aside, even if they "had" to file the brief against us, why didn't they just file a brief that argued the technicalities about why the case should have been thrown out (e.g., the plaintiffs had no standing)? No, what Obama did was throw the legal kitchen sink at us in a brief that could have been written by Antonin Scalia. They argued that DOMA is constitutional. Worse yet, they argue that it was a reasonable, rational, good law that actually saves the government money. They argued that DOMA wasn't motivated by hate. That DOMA doesn't discriminate against gays one bit because, apparently, gays can get married if they want... well, if they want to marry straight people of the opposite gender. They invoked Loving v. VA, the miscegenation case, and argued how it doesn't apply to gay marriage, undercutting the entire basis of our civil rights movement - saying that our civil rights are not akin, are not as worth, not as real, as the civil rights of blacks and other minorities. They went out of their way to try to diminish the legal impact of our two big Supreme Court victories, Roemer and Lawrence - that will have implications on every future civil rights battle we fight.

No. The Obama administration didn't just lie to Politico, Obama lied to our community, or he lied to the court. But you don't publicly call yourself a "fierce advocate" for gay rights, and then compare married gays to incest. You don't make your first official legal statement on gay rights an outright attack on the underpinnings of our entire civil rights.

Our president had a choice. And he chose to throw us under the bus, and then knife us for good measure.

PS And here's another lie from the Justice spokesman:

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.

In fact, Obama argued last night that DOMA does not deny gays any rights or benefits:

Rights

In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs' rights, even if same-sex marriage were accepted as a fundamental right under the Constitution.... DOMA, understood for what it actually does, infringes on no one's rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny.

Benefits

[G]ay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand...

DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order.

You see, this is the problem with what Obama did to our community last night. He can talk all he wants about helping us get our civil rights (well, in fact, notice the Justice spokesman said nothing about Obama actually helping us get DOMA repealed), but the Obama administration's own word will now be used against us, and against him, if he ever deigns to actually fulfill even one promise to our community. Read More......

Are Barney Frank, Tammy Baldwin, Howard Dean and Jared Polis really going to honor Biden at a gay DNC fundraiser this month?

And is Biden going to be dumb enough to show up in front a room full of gays, now?

Is the DNC crazy? They're actually going to hold a gay fundraiser, this month, and have Vice President Biden there. Seriously? After what the Obama/Biden administration just did to the gay community today - comparing gay marriages to incest - our leaders are going to honor them, and ask for our money for them, during the Stonewall anniversary?

If the DNC lets Biden into a room full of gays any time soon, well, they're nuts. I can only imagine the protests that are going to greet Biden outside, and inside, that room.

Barney, Tammy, Dean and Jared ought to be pulling out of this event, now. And any gay person who attends this event, and gives a dime to the Democratic party, is going to find themselves in some serious hot water with the community. I pity the gay organization that is stupid enough to send a representative. They're going to find a lot of their money, and membership, drying up as a result. I guarantee you.

PS Here's another lie from Obama's Dept of Justice:

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.

I'm sorry, but President Obama's Justice Dept just told the court last night that, in fact, DOMA doesn't discriminate at all against gay couples who want federal benefits. And I quote Obama's own brief:

DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order.

So did they lie to the court last night, or are they lying to us now? Read More......

Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children.

UPDATE: Show Obama you mean business, donate to AMERICAblog.

UPDATE: Former top aide to President Clinton says DOJ had a choice, they did not have to file a brief in favor of DOMA.

UPDATE: Mormon Bush holdover helped write and file anti-gay DOMA brief.

UPDATE: Gay groups rip Obama.

UPDATE: Are gay politicians going to continue hosting gay pride fundraiser for Joe Biden?

UPDATE: Obama spokesman caught lying to Politico.

Joe and I have been trying since last night to get a copy of the government's brief just filed in this case. This is not the GLAD case that we've written about previously, it's another in California.

We just got the brief from reader Lavi Soloway. It's pretty despicable, and gratuitously homophobic. It reads as if it were written by one of George Bush's top political appointees. I cannot state strongly enough how damaging this brief is to us. Obama didn't just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn't motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer and Lawrence shouldn't be interpreted to give us rights in any other area (which hurts us in countless other cases and battles). He argued that DOMA doesn't discriminate against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get married and we can't).

He actually 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. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level.

And before Obama claims he didn't have a choice, he had a choice. Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional (we'll be posting more about that later). Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was "abhorrent." Folks, Obama's lawyers are even trying to diminish the impact of Roemer and Lawrence, our only two big Supreme Court victories. Obama is quite literally destroying our civil rights gains with this brief. He's taking us down for his own benefit.

Holy cow. Obama 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").

Then in the next paragraph, they argue that the incest and child rape cases therefore make DOMA constitutional:

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.

Here is the entire document, and below are more excerpts:
Obama's Motion to Dismiss Marriage case

Publish at Scribd or explore others: obama doma

DOMA is good because it saves the feds money

"The constitutional propriety of Congress's decision to decline to extend federal benefits immediately to newly recognized types of marriages is bolstered by Congress's articulated interest in preserving the scarce resources of both the federal and State governments. DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources — and deciding to extend benefits incrementally — are well-recognized legitimate interests under rational-basis review. See Butler, 144 F.3d at 625 ("There is nothing irrational about Congress's stated goal of conserving social security resources, and Congress can incrementally pursue that goal."); Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) ("[P]rotecting the fisc provides a rational basis for Congress' line drawing in this instance."). Congress expressly relied on these interests in enacting DOMA: Government currently provides an array of material and other benefits to married couples in an effort to promote, protect, and prefer the institution of marriage. . . . If [a State] were to permit homosexuals to marry, these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual marriages on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose."

DOMA is constitutional (thus screwing us on any future lawsuits):

The constitutionality of Section 2 of DOMA is further confirmed by the second sentence of the Full Faith and Credit Clause, which expressly empowers Congress to prescribe "the Effect" to be accorded to the laws of a sister State. See U.S. Const. art. IV, § 1, cl. 2. Although the broad contours of this provision have not been conclusively established, the power exercised by Congress in enacting DOMA clearly conforms to any conceivable construction of the effects provision....

Under this view, Congress obviously acted within its plenary effects power in enacting Section 2 of DOMA. If the Constitution itself does not declare "the effect" of the law of "one state in another state," McElmoyle, 38 U.S. (13 Pet.) at 325, but instead leaves that "power in congress," Mills, 11 U.S. (7 Cranch) at 485, then Congress clearly had the authority in DOMA to declare that no State is "required to give effect" to the same-sex marriage laws of other States. 28 U.S.C. § 1738C.

"DOMA Is Consistent with Equal Protection and Due Process Principles." This is important because it means that Obama wasn't content to simply argue, based on technicalities, that this case should be thrown out. He went out of his way to argue that DOMA is actually constitutional, and then went into detail destroying every single constitutional argument we have for opposing DOMA in court. This will screw us on every lawsuit we file on every gay issue, in every public policy debate we have in the states on any gay issue.

DOMA Is Consistent with Equal Protection and Due Process Principles Plaintiffs further allege that DOMA violates their rights under the Due Process Clause of the Fifth Amendment, including its equal protection component. DOMA, however, merely preserves for each State the authority to follow its own law and policy with respect to same-sex marriage for purposes of State law. And it maintains the status quo of federal policy, preserving a longstanding federal policy of promoting traditional marriages, by clarifying that the terms "marriage" and "spouse," for purposes of federal law, refer to marriage between a man and a woman, and do not encompass relationships of any other kind within their ambit. Thus, because DOMA does not make a suspect classification or implicate a right that has been recognized as fundamental, it is necessarily subject to rational-basis scrutiny, see National Ass'n for Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000), which it satisfies.

Gays have no constitutional right to marriage, or recognition of their marriages by other states:

Plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no.

Praises DOMA as "cautiously limited"

DOMA reflects a cautiously limited response to society's still-evolving understanding of the institution of marriage.

Sounds to me like Obama just came out against the Loving v. VA case that ensured that people like his parents could marry

On the merits, plaintiffs' claims that DOMA violates the Full Faith and Credit Clause and their "right to travel" both fail as a matter of law. In allowing each State to withhold its recognition of same-sex marriages performed in other jurisdictions, Congress was merely confirming longstanding conflict-of-laws principles in a valid exercise of its express power to settle such questions under the Full Faith and Credit Clause. That Clause ensures that each State retains the authority to decline to apply another State's law when it conflicts with its own public policies. DOMA is fully consistent with that constitutional principle, as it permits States to experiment with and maintain the exclusivity of their own legitimate public policies — such as whether that State chooses to recognize or reject same-sex marriages.

Gays don't deserve same scrutiny in court that other minorities get

Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above — and as evidenced by the fact that plaintiffs have married in California — DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental — in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification.

Argues Republican position on how judges should review cases

DOMA therefore must be analyzed under rational-basis review. Under the highly deferential rational basis standard, moreover, a court may not act as superlegislature, sitting in judgment on the wisdom or morality of a legislative policy. Instead, a legislative policy must be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that the Congress itself did not advance or consider. DOMA satisfies this standard.

The twisted logic of this paragraph is sickening. Pat Robertson could have written this:

Likewise, Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage. In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs' rights, even if same-sex marriage were accepted as a fundamental right under the Constitution.

DOMA is a good thing:

It adopts on the national level, and permits on the state level, a wait-and-see approach to new forms of marriage. DOMA thus maximizes democratic flexibility under our federalist scheme, by simply preventing some States from requiring other States and the federal government to grant benefits to forms of marriages that, under their own constitutions, state or federal governments are not obligated to recognize. Because it is rationally related to legitimate governmental interests, plaintiffs cannot overcome the "presumption of constitutionality" that DOMA, like all federal statutes, enjoys.

DOMA is rational and constitutional:

Its cautious decision simply to maintain the federal status quo while preserving the ability of States to experiment with new definitions of marriage is entirely rational. Congress may subsequently decide to extend federal benefits to same-sex marriages, but its decision to reserve judgment on the question does not render any differences in the availability of federal benefits irrational or unconstitutional.

Provides legal argument against gays' right to privacy:

Second, the right to privacy encompasses only rights that are constitutionally fundamental, and, as noted earlier, the right to receive benefits on the basis of same-sex marriage (as well as same-sex marriage itself) has not been recognized by the courts as a fundamental right.

It's reasonable and rational for Congress to defend "traditional" marriage - in fact, DOMA was actual a very "neutral" law, rather than anti-gay:

Section 3 of DOMA reflects just such an approach: it maximizes democratic flexibility and self-governance under our federalist system, by adopting a policy of federal neutrality with respect to a matter that is primarily the concern of state government. Because all 50 States recognize heterosexual marriage, it was reasonable and rational for Congress to maintain its longstanding policy of fostering this traditional and universally-recognized form of marriage. At the same time, because Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States.

Again, Obama seems to states have the right to ban blacks from marrying whites:

[T]he public policy doctrine, which has long recognized the sovereign authority of the States to decline to give effect to the laws of a sister State at variance with their own legitimate public policy. Section 2 of DOMA merely confirms the specific applicability of that longstanding principle in the context of laws regarding same-sex marriage.

DOMA is entirely rational

Congress makes a wide array of federal financial and other benefits available to men and women united in marriage — to the exclusion of all other human relationships (save for that of parent and minor child), not just same-sex marriage. In enacting DOMA, Congress (1) recognized the right of some States to expand the traditional understanding of marriage while, at the same time, it (2) protected the rights of other States to adhere to their traditional understandings of the institution, and (3) maintained the longstanding federal policy of affording benefits to the traditional, and universally recognized, version of marriage. This measured response to society's evolving understandings of marriage is entirely rational. Indeed, under rational basis scrutiny, Congress is entitled to respond to new social phenomena one step at a time, and to adjust national policy incrementally. DOMA reflects just such a response.

DOMA wasn't motivated by a dislike of gays, silly.

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.

Please don't confuse the gays with the blacks, and other "real" marriages:

Finally, regardless of whether same-sex marriage is appropriate policy, under current legal precedent there is no constitutional right to it, and that precedent is binding on these parties and this Court. While the Supreme Court has held that the right to marry is "fundamental," Zablocki v. Redhail, 434 U.S. 374, 383-87, 98 S. Ct. 673, 54 L.Ed.2d 618 (1978), that right has not been held to
encompass the right to marry someone of the same sex. To the contrary, in Baker v. Nelson, the Supreme Court dismissed a claim that the Constitution provides a right to same-sex marriage for lack of a "substantial federal question." 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (Mem). In Baker, the Minnesota Supreme Court had rejected the contention that a State statute limiting marriage to one man and one woman violated federal due process and equal protection principles. The court found no "fundamental right" to same-sex marriage, 191 N.W.2d at 186-87, and concluded that the traditional definition of marriage effects no "invidious discrimination," and that the definition easily withstood rational-basis review. Id. at 187.

DOMA infringes on nobody's rights

In short, therefore, DOMA, understood for what it actually does, infringes on no one's rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny.

DOMA doesn't discriminate against gays - all they have to do to get the benefits is get married... to someone of the opposite sex! (This is an argument Obama stole verbatim from the religious right.)

Plaintiffs also maintain that DOMA discriminates on the basis of sexual orientation, in violation of their right to the equal protection of the law, see Complaint, ¶ 20, but DOMA is not subject to heightened scrutiny on that basis. As an initial matter, plaintiffs misperceive the nature of the line that Congress has drawn. DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order.... Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

Please don't compare gay marriages to inter-racial marriages

Loving v. Virginia is not to the contrary. 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. Personnel Adm'r v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979). In upholding the traditional definition of marriage, numerous courts have expressly rejected an alleged analogy to Loving.

DOMA is downright reasonable

In light of society's still evolving understanding of marriage, the statute adopted what amounted to a cautious policy of federal neutrality towards a new form of marriage. DOMA maintains federal policies that have long sought to promote the traditional and uniformly-recognized form of marriage, recognizes the right of each State to expand the traditional definition if it so chooses, but declines to obligate federal taxpayers in other States to subsidize a form of marriage their own States do not recognize. This policy of neutrality maximizes state autonomy and democratic self-governance in an area of traditional state concern, and preserves scarce government resources. It is thus entirely rational.

DOMA is reasonable and rational

Section 3 of DOMA reflects just such an approach: it maximizes democratic flexibility and self-governance under our federalist system, by adopting a policy of federal neutrality with respect to a matter that is primarily the concern of state government. Because all 50 States recognize heterosexual marriage, it was reasonable and rational for Congress to maintain its longstanding policy of fostering this traditional and universally-recognized form of marriage. At the same time, because Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not.

We wouldn't want the gays taking all of our money

DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources — and deciding to extend benefits incrementally — are well-recognized legitimate interests under rational-basis review.

Obama was doing us a favor

On plaintiffs' view, even though Congress was under no independent constitutional obligation to recognize same-sex marriage before any State did so, once a single State legalized same-sex marriage, equal protection principles mandated that Congress extend federal benefits to such marriages, or withdraw them from all marriages. No constitutional principle, however, mandates such a result, which is fundamentally at odds with our federalist scheme of divided sovereignty, and which could be a substantial disincentive for States to recognize new rights and privileges as circumstances evolve.

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Networks news ignores Obama's health care push, but loved the part about the kid who skipped school

Health care is becoming the dominant issue being debated in the country. Americans understand there is a problem. The President took his campaign to pass real health care reform to Green Bay, Wisconsin yesterday. Via the US News Political Bulletin, we get an overview of the coverage by the traditional media:

President Obama promoted healthcare reform in Green Bay, WI, yesterday. Obama's healthcare message was not covered by the networks, though it did gather some coverage on cable and local TV broadcasts as well as print outlets around the country. Most reports cast the President's trip as an effort to build up public pressure on lawmakers to act, and note that Obama linked his healthcare push to the economy.

But, not all news outlets noticed. Despite all the attention being paid to this health care discussion, the network news shows ignored the health care part:

On the network newscasts, the coverage of the President's visit to Wisconsin focused not on his remarks on healthcare, but rather on his exchange with the father of a 10-year-old who attended the event. The man, ABC World News "let his daughter skip school to attend." Obama wrote, "To Kennedy's teacher, please excuse Kennedy's absence. She's with me. Barack Obama." On the CBS Evening News , Katie Couric said about running footage of the exchange, "Pretty cool." NBC Nightly News also noted the "interesting moment."

If I had to guess, I'd say Katie, Brian Williams and Charlie Gibson don't spend a lot of time worrying about co-pays and hitting their prescription drug cap. They live in a bubble. And, their ratings suck anyway. But, it's just another indicator that news isn't news. Kate and Jon, Carrie Prejean and that guy with the kid in Brazil -- that's news.

For the rest of us, health care reform is real news. Read More......

Friday Morning Open Thread

Good morning.

Why am I still seeing Carrie Prejean on my television? Seriously. This isn't news anymore. Between her, Kate and Jon and the guy who has the kid in Brazil, the traditional media has a full plate. No time to really cover the intricacies of health care reform, which would affect all of us. Can't spend too much time uncovering the extensive hate networks in America and how they feed messages into "legitimate" organizations and members of Congress. Nope. Carrie Prejean hates the gay, Jon may or may not hate Kate and that other guy hates Brazil. Apparently, that's all you need to know.

Today is election day in Iran. The campaigning got really raucous and very intense over the past few weeks. By the end of today, we should know if Iran has a new president or still has the whacko.

Let's get it started.... Read More......

Should we be thanking Bernanke, Geithner & Paulson?

I never thought about popping Champagne in the second inning of a baseball game but apparently Steven Pearlstein of the Washington Post thinks it's deserved. "Hand-wringing" over the shotgun wedding between Bank of America and Merrill is justified when their is public money involved though I don't have an objection to forcing a merger during a crisis if that is going to be the lesser of two evils. Asking questions about public spending though, that is important and deserves proper attention.

In my world, $20 billion is a significant amount of money so I fail to see why a highly paid executive and senior government officials should not have to explain their actions. If it was a good deal and it made sense, fine. Explain it that way and move on. If it wasn't, we need to hear that as well. Congress is never shy with grandstanding but asking for details on billions of dollars - significant money to everyone outside of the beltway - is perfectly reasonable.

When the US is completely through this recession, fine, congratulate the people who took actions to prevent an even worse recession but we're not there yet, except in the mind of Pearlstein.

Now that it's all come to pass, you might think we'd take a moment and offer a pat on the back to the people who helped to engineer this little miracle -- folks like Hank Paulson, Ben Bernanke, Tim Geithner, Neel Kashkari, Sheila Bair, Barney Frank and so forth. There was nothing preordained about this fortuitous outcome. Nor, given the extraordinary amount of government intervention, can most of the credit go to the free market's natural self-correcting process.

Instead of celebrating this feat of economic policy, however, there are those who seem more in the mood for second-guessing and recrimination.

Pearlstein goes on to make a number of good points (seriously) but it's too early to be patting backs today. I still believe the banks had to be bailed out to avoid a depression but the same people who Pearlstein is congratulating above were also involved in implementing the failed policies of letting the banks win regardless of failure or success. Maybe, just maybe, that has something to do the questioning in Washington.

If it's too early to congratulate, it's not too early to start digging into how we got to this point in the first place. That's the much more important issue, especially as we listen to Republicans second guess the economic decisions being made today. Read More......

Factory output, consumer spending and credit up in China

Exports are still lagging but domestically, China is doing well. Is this growth sustainable? For the moment, nobody really cares as long as the growth is positive. The government did react early to address the global recession and it's paying off. The gamble is to get enough out of the local market for a period of time until the more profitable export markets pick up again. The big problem may be that the foreign importers may not be bouncing back as quickly as previously expected. Western recovery is much more likely to be long and slow. Reuters:

China's factory output growth rebounded in May alongside stronger expansion in credit and consumer spending, bolstering evidence that the world's third-largest economy is on the path to recovery.

The figures, which round out a batch of monthly data that has mostly surprised on the upside, suggest that the government's huge stimulus spending and tax breaks to encourage purchases of everything from cars to home appliances are helping to offset continued weakness in exports.

The acceleration in industrial production growth, to 8.9 percent compared with 7.3 percent in April, beat economists' forecasts of a 7.5 percent rise but was in line with a figure reported by two Chinese newspapers earlier this week.

Retail sales grew by 15.2 percent in the year to May, also beating forecasts and up from 14.8 percent expansion in April.

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Afghanistan moving on environment

Who would have guessed that a conservation movement was forming there? They will need money to build it out but what a great start. After the chaos of decades of war, programs like this are critical to protect wildlife such as the magnificent snow leopard. (hat tip Cat) BBC:

Afghanistan has published its first list of threatened wildlife that can no longer be hunted or harvested.

The list, compiled by the country's National Environment Protection Agency (Nepa), includes 20 mammal species, seven birds and four plants.

Officials hope to expand the number of protected species to as many as 70 by the end of the year.

The first wave of creatures to receive protection includes snow leopards, wolves and brown bears.

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CEOs still living the high life

But if Obama asked them nicely, gee, I bet they will all change. What more proof does this White House need to see that you can't be nice with these people? Everyone in the world knows there is a global recession and yet they still don't care. Not one bit. They will do whatever they want, when they want, how they want and in whatever level of luxury they want. Grow up Obama and face the facts. These people have no shame. This is precisely why "say on pay" will never work and only generate false hope which is plentiful these days in Washington.

Throughout Corporate America, many companies require top executives to use company planes for all travel, including vacations. They argue it is a safety requirement for high-profile business leaders rather than a perk, and that private flights are more efficient for busy executives who don't have time to waste waiting in airports.

Some companies have stopped underwriting these personal flights in recent years amid shareholder scrutiny of executive pay practices, but overall CEO aircraft perks are showing no signs of fading, according to a study released on Tuesday by executive pay consultant Equilar.

The report found that the value of CEO airplane perks in 2008 was at the highest level in the last five years, with the median value for CEOs in the Fortune 100 -- the biggest 100 corporations -- jumping nearly 29 percent to $141,477 from $109,743 a year earlier.

Also last year, 79.2 percent of the Fortune 100 reported allowing personal use of corporate aircraft, up from 74.7 percent in 2007, Equilar said.

There you have it. It's the worst recession since the Great Depression and they have the audacity to *increase* such travel. Amazing. Read More......

Osprey nests returning to UK

Growing up around the Chesapeake Bay, these have always been one of my favorite birds. I loved seeing their big nests on top of channel markers and it sounds like they have been creating something similar in the UK to attract their nests. Great to see that they are once again nesting in the UK after being gone for a few centuries.

Ospreys, the spectacular fish hawks whose return to Britain has been a conservation success story, have nested in Northumberland for the first time in more than two centuries.

A pair are thought to have hatched out chicks at a nest near Kielder Water, a forest-surrounded reservoir which is Europe's biggest man-made lake. A project to encourage the birds to return to the area, which is on their migration path, has attracted them to a breeding platform erected for them.

Read More......