Over the next two weeks, the Department of Justice will have to decide whether it will defend the constitutionality of DOMA. You recall that, last July, Federal District Court Judge Joseph Trauro found Section 3 of DOMA was unconstitutional in cases brought by GLAD and the Commonwealth of Massachusetts. DOJ doesn’t have to defend DOMA. It’s not like the District Court level cases where DOJ had to defend the law. Now, DOJ will be going to the Circuit Court of Appeals to argue that DOMA is constitutional. The widely-held expectation is that DOJ will appeal.
Chris Johnson has the latest:
President Obama’s commitment to repealing the Defense of Marriage Act is likely to come under enhanced scrutiny next week when the U.S. Justice Department announces its decision on whether or not it will appeal federal court rulings against the statute.
Legal experts across the board are expecting the administration to appeal the decisions as many LGBT advocates grumble that the defense of DOMA in court undermines Obama’s campaign pledge to advocate for same-sex couples.
Richard Socarides, a gay New York attorney and former adviser to President Clinton, said he expects the Justice Department to appeal the cases because he believes the administration hasn’t shown any signs of changing its position after defending DOMA at the district court level.
“I think that they’re going to continue to battle the gay rights movement in the courts,” Socarides said. “I think it continues to be one of the most unfortunate decisions of the president’s entire first two years in office and really something that is perhaps the most troubling part of these first two years of his presidency.”
Socarides said he doesn’t think the administration is compelled to appeal the decisions to the U.S. First Circuit Court of Appeals even as he acknowledged that debate has taken place over whether the president can decide against upholding a federal statute.
“I think that it’s clear now that the president has the option of declining to defend laws that he believes are not constitutional,” Socarides said. “This law has now been declared unconstitutional, so he could agree with the federal district court … and choose not to defend it.”
This might feel different if the Obama administration had taken any action to repeal DOMA in Congress. But, we couldn’t even get a Committee vote on ENDA and the President didn’t make a single phone call to a Senator or make a simple statement about the filibuster of the Defense Authorization bill, which contained the compromise DADT language.
So, we’ll be heading into the 2012 reelection without DADT repeal, without passage of ENDA, but with the Obama administration defending the constitutionality of DOMA — and DADT — in the courts. Not sure how Jim Messina is going to work that into a fundraising appeal to the LGBT community. (Expect to hear a lot about Hate Crimes and hospital visits over the next two years. You’ll probably hear a lot about them at HRC’s big “No Excuses” dinner on Saturday night, cause they’ve got nothing to else to show either.)