Wednesday, June 17, 2009

After Controversial Defense of DOMA, Obama Will Give Benefits to Same-Sex Partners of Federal Workers

Last week the Department of Justice submitted a legal brief defending the Defense of Marriage Act against a lawsuit challenging its constitutionality. The brief, which contains politically damaging even if legally predictable arguments, caused controversy among LGBT activists. Today, in a move possibly designed to calm that storm, the President will apparently issue an executive order extending benefits to same-sex partners of federal employees. The full details of the rumored plan, however, remain unavailable, but the New York Times reports that it will not include "health benefits."

Note: Outside of pensions and health care, I am not sure what substantial "benefits" the partners of federal employers receive.

19 comments:

Infidel753 said...

I've never seen a scintilla of evidence that Obama takes gay-related issues seriously at all. From Rick Warren at the inauguration to DOMA now, this seems to be is area of choice to do his "common ground" cozying up to the right wing.

When the pressure's on, he'll do what he has to do to get it turned down -- no more.

Which means there's gonna be a need for a lot of pressure.

Stray Yellar Dawg? said...

Infidel is correct. Obama cares not one iota about gay rights. He will do what he has to to shut us up. That is all.

This is no time to start feeling placated.

Speak up, or be left in the dust!

Darren Lenard Hutchinson said...

Well, y'all know what I think. I said this a long time ago: President Obama: Less Talk, More Action on GLBT Rights Issues!

liberal dissent said...

I have not been able to find any information on exactly how Obama justifies the defense of DOMA. Is this simply appellate lawyers just maintaining the argument they developed under Bush?

Darren Lenard Hutchinson said...

Liberal Dissent: The DOJ brief is online. I am not sure where I read it, but you can find it easily (actually, I think it was on Americablog).

The arguments in the brief are all fairly developed arguments that have always been used in opposition to glbt rights claims. Most of them are technical con law points, but some of the language has created a stir. I have taught con law for over 11 years now. So, the legal arguments do not surprise me (and they existed long before Bush). I cannot even say I am completely surprised politically, given my prior posts about Obama and gay rights (use the search box and search for glbt). I have always been very cynical about his endorsement of glbt issues and antiwar concerns (and many other liberal issues). But that's why I started a blog called Dissenting Justice!

Anonymous said...

Dear Mr. Hutchinson: Let me point out that the DOMA brief concerns law, while this is an executive order. Changing a law would require investing time and effort, while an executive order is a stroke of the pen. But excluding health care is a makes even the stroke of the pen a joke. There are some other benefits, it's true:

a) life insurance
b) possibly long term care insurance
c) bereavement leave, or whatever the feds call time off to care for a sick partner or grieve from the death of a partner.

All those who voted for The One should not be surprised by this. The tipoff came last summer when The One, having suckered McCain into taking federal matching funds for the fall election, thereby choking McC's private fund raising capacity, announced that he had changed his mind and wasn't taking federal funds, the first big party presidential candidate ever to do so. His doing so made it likely that no future big party candidate would ever take federal funds, thereby destroying the carefully wrought "campaign finance reform" system. In the medium run, destoying said system may be a great thing The One has done for the country. But The One didn't do it for that reason. He did it to stick his finger in McC's eye, successfully. Everyone on the Left laughed at McC, while cheering The One on. Now they are finding The One's fingernail in their own eyes and are bawling again. This is only the first of many eye pokes they, and the rest of the nation, are going to have to endure from The One. If they think gay rights are bad, they need only wait a bit while Iran and the Middle East heat up. The price the Middle East will exact from this nation for The One's imbecile buffoonery will beggar belief.

I exempt the proprietor of this blog from these strictures. He has always kept his eyes open when examining The One, and has also had the foresight to wear welding goggles.

Sincerely yours,
Gregory Koster

liberal dissent said...
This comment has been removed by the author.
liberal dissent said...

Oh, I understand the legal justification for defending DOMA, just not the political; I meant I don't understand why Obama is defending it when he described it as "abhorrent" on the campaign trail.

In fact, with the exception of the attempt to abrogate the full faith and credit clause of the Constitution I think DOMA is probably Constitutional, as much as I detest the law. And the argument the DOJ brief even makes regarding the full faith and credit issue isn't completley out there, I just think it's pretty weak.

It is entirely possible Obama feels the same, as on the campaign he argued for its repeal rather than for it being struck down by the Supreme Court.

I'm curious to see what he says on the issue, but unfortunately he seems to be avoiding addressing it.

Darren Lenard Hutchinson said...

Liberal Dissent: Thanks for the clarification. Well, to the extent that DOMA denies "same-sex married couples" the same benefits that "opposite-sex married couples" enjoy, it is hard for me to describe it as "constitutional." That depends upon whether discrimination on the basis of sexual orientation is permissible, which the brief argues in the affirmative (at least in this context -- but the arguments would justify virtually all discrimination against GLBT people).

With respect to the FFC argument, I think this is, like all other "constitutional" points, the Supreme Court's call. If the SCT determines that states cannot deny FFC to same-sex marriages, then this part of DOMA is unconstitutional.

I think that Obama is either uncommitted to or extremely afraid of gay rights. If he really valued repealing DOMA he could have chosen other routes - procedural mechanisms that would have aided the case. I would like to see "settlements" reached in some of the cases while the law is debated. On the military issue, he could have ordered the military to allow the individuals who recently came out to remain in the military -- although this could have sparked additional outings. But again, because I never trusted him on this issue, psychoanalyzing his tepid stance is sort of difficult.

Anonymous said...

How can Obama justify such an executive order? The order, in light of DOMA, is clearly unconstitutional. Under Constitution there is only one branch that sets a national policy and that is Congress. Congress in DOMA speaking on behalf of people clearly felt that giving the same benefits to same sex couples as to married couples weakens marriage(whether rightly or wrongly). But I guess the King Obama knows no wrong.

liberal dissent said...

Darren:
Well the S.Ct. is going to apply a rational basis test, and that along with the fact that a gay individual are not themselves deprived of any specific rights or benefits will probably mean the DOMA will be found Constitutional. It will probably be a 5-4 decision against striking it down, if Kennedy follows his dicta in Romer v. Evans. In that case they will also probably find the FFC issue Constitutionally sound, though I think they shouldn't.

Anonymous:
The DOMA only applies to marriage; it does not impact same-sex partners. Obama can provide benefits to same-sex partners, families, brothers, and family pets if he chooses. As long as he is not calling same-sex partners spouses.

Darren Lenard Hutchinson said...

Liberal dissent: The DOMA lawsuit to me is about "equal protection." The marital distinction was defined in opposite-sex terms for the clear purpose of preventing gay couples from receiving federal benefits that hterosexual couples receive. How is this not a deprivation of a "specific benefit"? It is a discriminatory denial of benefits.

The government's argument sounds like Louisiana's argument in Plessy. Segregation did not discriminate against black people because blacks and whites were treated the same: no whites in the "black" cars, no blacks in the "white" cars. But as Justice Harlan argued, segregation was not intended to keep whites out of the black cars, but to accomplish the opposite. DOMA was designed to strip gay couples in same-sex marriages of any federal benefits assigned to marriage and to preserve these benefits for heterosexuals. This is per se discrimination.

Anonymous said...

Liberal dissent:

Obama can do no such a thing. Spending power is vested in Congress only. The main purpose of Doma was to refuse to federal employess who are LGBT any benefits of married couples, so to underscore the centrality and importance of traditional marriage.

Anonymous said...

If you think about it, it's clear that Gay couples don't deserve the benefits of the married couples or that equal protection argument is inapposite. The institution of civil marriage of the states giving benefits to married couples,was founded in the beginning of 20th century to encourage procreation. See NY's decision on this topic. A hundred or so years ago a lot of people were waitng for a long time to make enough money to establish a home, so states' goernments had to step in. So the states began offering incentives to marry to encourage procreation. .....And since gay couples don't procreate, I don't see any discrimination here.

Darren Lenard Hutchinson said...

Anonymous: Some gay and lesbian couples parent, and many heterosexual married couples do not parent, but still receive benefits. These benefits include social security -- so it's hardly about reproduction.

Anyway, even if we accept your argument about procreation and marriage, this does not end the discrimination argument. Assigning benefits to activity that correlates strongly with heterosexuality does not strike me as a neutral position.

But this is a moot point becauase the government did not defend DMA on proration grounds. It said that only rational basis review should apply and that DOMA was enacted to preserve resources.

liberal dissent said...

Darren: Rights are held by individuals though, I just don't think a "couple" has a cognizable Constitutional right; those rights are generally held by individuals.

The question is, what does DOMA prevent a gay individual from doing that a heterosexual can? They can marry the same people (they just don't want to). As for Plessy, I think you can distinguish Harlan's concurrence from what's happening here because Plessy DID attack those individual rights.

And another problem with looking at the DOMA lawsuit as dealing with equal protection is there is no express right to equal protection in the face of Federal, as opposed to state laws. Yes, the S.Ct. likes to use Fifth Amendment Due Process as an equal protection guarantee, but I was under the impression that happened only when the S.Ct. was looking at discrimination that was extremely unjustifiable. In this case the Federal clause of DOMA ultimately effects certain benefits under Federal law which honestly probably do not rise to that level of unjustifiability.

Anonymous: Congress doesn't manage the executive branch. Yes, issues involving spending typically will need Congress to pass a law, but if you paid attention you'd see that the benefits that Obama extended aren't the ones (like healthcare) that cost enough money as to necessitate new Congressional funding.

And if prohibiting same-sex partners was DOMA's goal, then the law should have said so. As it stands right now it only applies to actual marriages.

Darren Lenard Hutchinson said...

Liberal Dissent: First, marriages are comprised of "individuals." Also, your argument would mean that Loving v Virginia and all of the other marriage cases were wrongly decided. In fact, your argument would eviscerate most of the family law jurisprudence premised on constitutional law (family and parental rights, etc.) as well as calling into question concepts like the "freedom of association," which inherently involve "groups" of people.

DOMA prevents a gay person from getting federal benefits doled out on the basis of marriage, while a similarly situated married heterosexual person receives those benefits. Why is this so difficult?

Also, your statement of the Fifth Amendment equality component is incorrect. Thanks to the affirmative action cases, the Court essentially applies the same standard. Indeed, the same cases are even cited. There is no practical distinction -- unless it is structural (i.e., some type of separation of powers concern).

Darren Lenard Hutchinson said...

PS: Liberal Dissent - your argument would also call into question existing sexual liberty cases, like Lawrence, and undermine the idea altogether. Outside of masturbation, "sex" is normally thought of as involving more than one person. To deny "liberty" in these cases because the activity inherently calls for more than one person (and that the consitution only protects individuals) would undo the constitution altogether.

liberal dissent said...

I just can't agree with you. Gay man "A" has exactly the same rights as straight man "B". There is nothing B can do that A can't. B can't marry a man either.

And the sexual liberty cases involve a right of privacy that is not at issue here. I think it is much easier to use the fifth amendment due process protection to cover privacy rights than it is to cover same-sex partner benefits under federal law.

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