What Does Obama's Decision Mean?

[Judith Pratt]

From Whitney:

Greetings All:

 

I am doing some research on the effect of the DOMA decision today.  For those who are not aware, today the Justice Department, With President Obama cheering from the sidelines, said it will no longer support the third section of the Defense of Marriage Act in court.   This raises more questions than it answers, but here are a few answers anyway, from the National Center for Lesbian Rights:

 

Frequently Asked Questions about the President’s Historic Decision to Stop Defending Discriminatory Federal Defense of Marriage Act

 

Updated 2.23.2011

 

What does the administration’s announcement say and what does it mean?

 

The announcement says that, after carefully considering the issue, President Obama has determined that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional and has directed the Department of Justice to stop defending it. This means that President Obama believes that, like laws that target people based on race, sex, or religion, laws that discriminate against same-sex couples deserve a heightened level of scrutiny. It also means that the federal government will stop defending DOMA in lawsuits.

 

What does "heightened scrutiny" mean?

 

When considering whether a law is constitutional, courts give most laws the benefit of the doubt that they are constitutional. Generally, laws are constitutional as long as there is any possible "rational basis" supporting them. However, courts are more suspicious of laws that target groups with a history of discrimination against them. So in order to determine whether those laws are constitutional, courts hold them to a higher standard than just "rational basis". For instance, laws that discriminate against groups based on their race, national origin, or sex are generally presumed to be unconstitutional. They will only be upheld if the government can show a very strong reason for the law, and can also show that discriminating is necessary to achieve that goal. In practice, such laws are almost always unconstitutional.

In addition to deciding that DOMA should be held to a higher level of scrutiny, the administration has also determined that DOMA cannot meet that heightened standard and is therefore unconstitutional.

 

Is DOMA dead?

 

No. Today’s decision by the President and the Department of Justice that the executive branch will no longer defend DOMA does not overturn or repeal the law. That will take an act of Congress or a decision from the federal courts. Senator Dianne Feinstein (D-CA) has announced that she will introduce a bill to repeal DOMA in the Senate. Representative Jerrold Nadler (D-NY) has announced that he will introduce the Respect for Marriage Act of 2011, which would repeal DOMA, in the House.

 

What is Section 3 of DOMA?

 

Section 3 of DOMA prevents the federal government from recognizing marriages of same-sex couples for any purpose, even if those marriages are valid under the law of the state where the couple lives. It limits all federal benefits and recognition of marriage to different-sex couples. This is the portion of DOMA that will no longer be defended by the federal government.

 

What does this mean for the cases challenging DOMA that are pending in the courts?

 

President Obama has directed the DOJ to stop defending Section 3 of DOMA in all pending cases and to refuse to defend it in any future cases. However, the DOJ will remain a party in the pending DOMA cases. The Attorney General has sent a letter to Speaker of the House John Boehner (R-OH) informing him of the policy shift so that members of Congress who wish to defend the statute may seek to intervene in those cases.

 

What does this mean for the federal challenge to Prop 8?

 

The federal government is not a party to the Prop 8 case, so this decision does not directly affect that case. However, by publicly stating that laws targeting LGBT individuals deserve heightened scrutiny, the administration has put the power of the White House and the federal Department of Justice behind the position that such laws should be presumed unconstitutional. That will be a strong boost for the plaintiffs in

Perry v. Schwarzenegger who are challenging Prop 8.  

If and when DOMA is overturned, does that mean marriage for same-sex couples will be legal everywhere in the country?

 

No. DOMA section 3 prohibits the federal government from recognizing marriages between same-sex couples where those marriages are legally recognized in a state. Repealing or overturning DOMA will simply allow the federal government to recognize valid marriages performed in states and countries that have legalized marriage for same-sex couples. Even if DOMA is repealed or held unconstitutional by a court, that will not necessarily affect the many state laws that exclude same-sex couples from

This info is available here:  http://www.nclrights.org/site/DocServer/DOMA_FAQ_2-23-11.pdf?docID=8221

 

Some other info:  (This is my own analysis and subject to revision as more info becomes available.)

 

Obama's decision today is directed specifically at Section 3 as explained above.  Section 2, which allows states to specifically deny recognition to same-gender couples married in other states, remains intact as far as I can tell.  (Section 1 is not readily available; however it is likely just a preamble to the rest of the act.)   This means that each state can still set its own rules.   Maryland, for instance, just today moved a bill through its legislature that may very likely legalize same-gender weddings there, and the Hawaiian  Governor signed a bill today to allow Civil Unions.   There will likely be a patchwork of these kinds of laws, as well as states where we remain illegal, for the forseeable future.

 

Also, as noted briefly above, just because the Attorney General refuses to support the law, it is possible that some other Senator or Congressman would be willing to pick up the tab to hire lawyers to defend the law in the two cases where it is currently pending, (in New York and Connecticut.)   You must know that hate groups like Focus on the Family and the Family Research Council would be only too willing to foot the bill for any Congressman who wants to suck up to a conservative district.  I am not yet convinced that such a defense is unlikely, although most of the LGBT sites I use for reference do not seem to be emphasizing this point.  (Maybe I have just been disappointed too many times to get my hopes up.)

 

Finally, this will not have any effect on Federal enforcement of the basic provisions of DOMA for other reasons.  The IRS will NOT suddenly be recognizing us; nor will the VA nor the Social Security Administration, etc.  That will only come is the Feinstein-Nadler efforts to pass the complete repeal of the act are successful, or if a federal court deems the whole act unconstitutional altogether.  So go ahead and get your taxes done.

 

Now, there is one other thing that happened today that you may have missed.  Ted Olson, the lead attorney in the current Prop 8 case, has asked the Ninth Circuit Court to vacate the stay that was placed on the ruling by Judge Walker that Prop 8 is unconsitutional.  (You'll recall we got that ruling in August, and celebrated for almost a full minute before the court stayed its own ruling pending review by the full court.)  When the Ninth Circuit asked the California Supreme Court to hear the issue of standing, the California Court indicated that it would hear the case, but not until October.   Olson is arguing that such a delay is fundamentally a denial of rights to same-gender couples.   The original stay was placed with the understanding that the Ninth Circuit would fast-track the case, and that only a few months would pass before a ruling would come.  Now that it will be more than a year form the original ruling, Olson says that creates an unfair hardship, and the Ninth should lift their stay pending the outcome of the Supreme Court ruling.  If this argment is successful, there may be another round of gay weddings.   Keep in mind though, that these would occur under the cloud of continuing letigation in the California Supreme Court and Ninth Circuit, that might  at some point overturn the original finding that Prop 8 in unconsitutional.   In other words, it is possible that there may be some weddings, but they may also once again come to an end if the courts ultimately rule against us down the road.   For now, we wait to see what the Ninth does with Olson's brief. 

 

It's all very confusing, isn't it?

 

I hope this clarifies things at least a bit.   If you have questions, please reply to this email, and I will try to find a resource that answers them, if such a resource exists. 

 

If you'd like more info about the Olson case, go here: www.afer.org

 

 

That's what I understand for now.  

 

Whitney

 

 

 

 

 

 

--

Whitney

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This message was sent by Whitney (wlwe...@gmail.com) from The Bakersfield LGBTQ Meetup Group.

To learn more about Whitney, visit his/her member profile

Meetup, PO Box 4668 #37895 New York, New York 10163-4668 | sup...@meetup.com  

[Judith Pratt]

1/ The evening of Saturday, April 9, CSUB's GLSSN is hosting the San Francisco Gay Men's Chorus here at the Dore Theater. It's in the evening. I am hoping to find some GLSSN members who, for a free ticket to the event, will help in the ticket booth in the afternoon and/or help set up/remove chairs after the event for a reception on the Dore Patio. Tickets will be $25 (or $40 for the first three rows).

2/ Six Flags Magic Mountain called regarding "Out in the Harbor" in the Spring (I am waiting for a phone call re: date). Six Flags is contacting all CSU GLSSN clubs about this special event. Sounds like fun. I will let you know the details when I get a call back.

[Judith Pratt]

here is the flyer for Out in the Harbor, a special event for GLBT students May 15... special ticket prices! Sounds like a car pool event, and friends and family are welcome for the same low price!

Judith Pratt

Associate Professor, Communications Department

California State University, Bakersfield

9001 Stockdale Hwy.

Bakersfield, CA 93311-1099

(661) 654-2255

FAX (661) 654-6075

"Migwitch" ('thank you' in Ojibwe)

"ENERGY RIGHTLY APPLIED CAN ACCOMPLISH ANYTHING" - Nellie Bly

[Judith Pratt]

Save the date! San Francisco Gay Men's Chorus returns to Bakersfield for an evening of amazing music and entertainment. You won't want to miss this! Saturday, April 9 · 7:30 pm - 9:30 pm at the Dore Theater, Cal State University, Bakersfield

Joining them onstage will be Rainbow Voices of Bakersfield!

The San Francisco Gay Men’s Chorus repeats its groundbreaking California Freedom Tour. The vision that inspires the tour is to build bridges across cultural divides, create acceptance and galvanize local communities. The Chorus will present a concert of uplifting and joyous music that speaks directly to the experience of seeking freedom in the face of discrimination.

Local Sponsor: California State University Bakersfield Gay, Lesbian, Straight Student Network (GLSSN) - Club President John Davies will welcome the Chorus on stage.

Seats are limited! Advance seats are available by credit card at www.communityboxoffice.org, and will be cash only on the day of the event at the box office. Two front rows are $42, and the rest of the house is $25. Just over 400 seats available! THIS SHOW WILL SELL OUT!

I need volunteers to help! Email jpr...@csub.edu