Alex Blaze

Justice Department Wants a Court to Strike Down DOMA

Filed By Alex Blaze | March 01, 2011 10:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: DOJ, DOMA, justice, LGBT, marriage

Something tells me the situation on DOMA is going to be murky forgod-hates-mcdonalds.jpg a while:

The Justice Department says a lesbian federal employee should still be denied permission to add her wife to her health insurance despite the Obama administration's refusal to defend a federal law banning recognition of same-sex marriages.

Government lawyers told a federal judge Monday in San Francisco that the administration will still enforce the Defense of Marriage Act until it is struck down by a court or repealed by Congress. They say its new position on the act's unconstitutionality is irrelevant.

I posted about Golinski's case a while back and how the DOJ refused to follow the judge's order to give Golinski's partner health care benefits because the judge was acting in his capacity as an employer, not a judge (the judge disagreed with them, but apparently that's still being fought out). But I wonder why the DOJ is waiting for DOMA to be "struck down by a court" when it was struck down last year in Massachusetts v. HHS and Gill v. OPM.

Speaking of which, the DOJ told the court in those cases that it would no longer defend DOMA:

Assistant attorney general Tony West notified the clerk of the First Circuit that the department will no longer defend Section 3 of DOMA in Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services. He cited President Barack Obama's recent assertion that DOMA is unconstitutional.

According to the Gay and Lesbian Advocates and Defenders, which represents the plaintiffs, the department's lawyers will proceed to defend the government, but they will not argue that DOMA is constitutional.

I don't know what argument they're going to make when it comes to not recognizing same-sex marriages performed in Massachusetts that isn't related to DOMA.

It's times like these I wish I had gone to law school instead of moving to France.

I suppose we'll just have to wait and see. Fortunately, I'm not in a same-sex marriage and seeking some kind of federal benefit in the US. If I were, I'd be hoping this process would move a little faster.

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Repealed by Congress or struck down by a court? Huh. That's surprising to me after their insistence that DADT be repealed by Congress, not by the courts. I get that there would be a process with repeal, but wouldn't the IRS and other bureaucracies involved in federal marriage benefits need time to adjust as well? There aren't soldiers to train, but paperwork would have to change and hulabaloo to deal with as well.

I'm all for courts striking it down, though. I sure that's where it will happen.

I think they're deliberately trying to muddy the waters so it can all be brought together in one big ole lawsuit for the Supremes. Right now the confusion is beneficial to the administration. No one knows what's really going on, they look like they did their job of defending the government, they know the confusion will help them lose and score political points, and it's not something that the general LGBT community will get all worked up over since no one understands it until they hand us another small victory and tell us to cherish it and make it grow.

I, too, Alex, am confused, since, as you noted, Judge Tauro did strike down Section 3 in two separate (but closely related) cases on two separate constitutional grounds.