Thursday, November 5, 2009

UPDATE: Department of Justice Argues No Fundamental Right Exists for Federal Gay Marriage Benefits

UPDATE: Brief added at bottom of post. H/T to Proposition 8 and the Right to Marry.

Earlier on Unite the Fight I reported that Massachusetts Attorney General Martha Coakley sued the federal government for discriminating against legally wed, same-sex couples because it did not extend federal marriage benefits upon them.

The Department of Justice (DOJ), under the Obama Administration, has responded with a filing in court claiming the federal government cannot be forced to extend such benefits and cites the Defense of Marriage Act (DOMA) as its reason.

The AP reports:
The Obama administration agrees the Defense of Marriage Act, or DOMA, is discriminatory and wants it repealed, but says it has an obligation to defend laws enacted by Congress while they are on the books and can be reasonably defended.

The law "does not prohibit gay and lesbian couples from marrying, nor does it prohibit the states from acknowledging same-sex marriages," according to the court filing by Assistant Attorney General Tony West.

Massachusetts, the filing continues, is trying to claim individuals have a right to federal benefits based on marital status.

"There is, however, no fundamental right to marriage-based federal benefits," according to the 36-page filing.
DOJ spokeswoman Tracy Schmaler went on to tell the AP that any state "can allow gay and lesbian citizens to marry and can make its own decisions about how to treat married couples when it comes to state benefits."

"Massachusetts is not being denied the right to provide benefits to same-sex couples and, in fact, has enacted a law to provide equal health benefits to same-sex spouses," she said.

Like I and many others have said before, precedent has shown that an administration can choose not to defend a law that it believes to be unconstitutional (Reagan, Bush, Clinton). And since Obama does believe it is unconstitutional, I do not understand why he and his DOJ can say in one breath, "We don't like this law but we're going to defend it."

Let's top this off with quoting America Blog: "...this White House has already refused to enforce laws it didn't like - on immigration and medical marijuana - so don't lecture us about how you had to side with the religious right because of your respect for the rule of law. We simply weren't important enough."

Obama has stepped it up more lately, such as passing hate crimes legislation. I'm grateful. But this is such an affront to what the Supreme Court has already said is a fundamental right.

If he truly believes it's discriminatory, then isn't it hypocritical to defend it?
Brief Defending DOMA in Commonwealth of Massachusetts v. U.S. Dept. Health and Human Services

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