NOM BLOG

Monthly Archives: February 2011

Video: Brian Brown interviewed on the DOMA decision

Here is Brian Brown's appearance on CBSNews.com's TopLine webshow, where he discusses President Obama's decision not to defend DOMA:

Read more of our ongoing coverage of the DOMA decision here.

"The Imperial Presidency"

Megan Mcardle in The Atlantic quotes Orin Kerr at Volokh Conspiracy:

There's an interesting analytical similarity between the DOJ's position on DOMA and the Bush Administration's reliance on its Article II theories. If you look at AG Holder's reasons for why DOJ won't defend DOMA, it is premised on DOJ's adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that "the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA." This theory is not compelled by caselaw. Rather, it's a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.

Committee for Justice's Curt Levey: Obama's DOMA Outrage Will Backfire

President Obama’s decision to abandon the Defense of Marriage Act (DOMA) is both outrageous—as a matter of Justice Department policy and constitutional law—and a miscalculation that will decreases the chances of ObamaCare being implemented, while potentially increasing calls for Supreme Court Justice Kagan to recuse herself from certain gay rights cases. [source]

Liberty Counsel statement on DOMA

“This is outrageous and unthinkable that the President would abandon the defense of marriage,” said Mathew Staver, Founder and Chairman of Liberty Counsel. “President Obama has betrayed the American people by his refusal to defend the federal law that affirms what many courts upheld as constitutional, namely, that marriage is between one man and one woman,” said Staver. [source]

ADF statement on DOMA

“The American people have a right to expect their laws to be defended by the very people whose job it is to do so: their government officials. But the administration is making clear that they are simply not going to defend marriage.”

“Marriage is a unifying issue in America. The federal Defense of Marriage Act reflects the reality that 90 percent of states protect marriage and that the citizens in those states believe in marriage as a union only between one man and one woman. Tragically, the Department of Justice has chosen to appease a small–but vocal and wealthy–constituency and abandon its duty to the people.” [source]

AG Holder's Letter to Speaker Boehner

Attorney General Eric Holder's Letter

Alert: Brian Brown to be on ABCNews.com's "Top Line" at Noon

Brian Brown will be on ABCNews.com's web show "Top Line" today at 12noon (ET) to discuss the recent developments with DOMA. Tune in if you can!

Interviewing him will be Amy Walter, ABC News Political Director, and Jon Karl, their Senior Political Correspondent.

NC Senate Bill calls for statewide referendum on marriage amendment

Daily Comet: S106, to call for a November 2012 statewide referendum to amend the North Carolina Constitution to make clear marriage between a man and a woman is the only domestic legal union recognized in the state.

The Left’s Endless Culture War

I have a lot more to tell you, but I'll hold some of it for next week and end with a treat for you:

Coincidentally the day before Pres. Obama broke the news of his new war on DOMA and marriage, Maggie wrote a syndicated column called “The Left's Endless Culture War.”

“The culture war will never be over,” she presciently predicted, “because the left will never permit itself to declare victory and stop pushing for more. The progressive imagination requires victims, in order to sustain its own identity as the hero.

“And being men and women of the left, they have no problem using government to reshape morality, preferably using your tax dollars to build institutions to reshape your children and grandchildren's moral outlook. And on the left, they have no problem aggressively condemning fellow citizens who disagree with their novel views as bigots, haters, and all around morally bad folks.”

In short she reminds us, “when it comes to the culture war, gentlemen may cry 'peace, peace,' but there is no peace.”

And so the question she asks for the rest of us becomes: “Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?”

We will fight this fight for you and with you--for marriage, for common sense, for democracy and our beloved Constitution.

Why the Obama Power Grab Will Backfire

Here's the good news: This overreaching arrogance on Pres. Obama's part is going to backfire.

Over at Red State, Curt Levey points out, “President Obama's decision today to abandon the Defense of Marriage Act (DOMA) is both outrageous--as a matter of Justice Department policy and constitutional law--and a miscalculation....”

I agree!

We've been quietly investigating the intervention issue in the last six weeks and working with leaders of other groups to build consensus.

The one legal barrier which remained to House intervention is that the House typically intervenes only when the President refuses to defend a law passed by Congress. So the fact that Pres. Obama was formally pretending to defend the law (even while trying hard to lose the case in court) was a potential problem.

Pres. Obama just removed that obstacle. Thanks be to God!

Pres. Obama just nationalized the marriage issue by his aggressive stance. And the American people will speak truth to power--I promise you that!

Obama’s Power Grab: “The Imperial Presidency"

What happened yesterday was an amazing display of arrogance combined with incoherence. Pres. Obama promised to “enforce” the law, but not to “defend” it. What does that mean?

It means, for one thing, that the Justice Department is now totally, nakedly politically corrupted, delivering to Pres. Obama's base on an issue they want, but continuing to “enforce” the law so as to minimize public awareness and opposition. It is a legally incoherent position, but that doesn't matter to Eric Holder's Justice Department.

The President's job is to defend the laws duly passed by Congress. On what grounds did Pres. Obama throw in the towel on DOMA?

He and Holder called the law “legally indefensible” because, well, Congress repealed Don't Ask, Don't Tell, and the Supreme Court has said that criminalizing homosexuality is unconstitutional, and one low-level federal judge says DOMA may not be constitutional.

Wow. That's pretty underwhelming evidence that marriage cannot be defended. What legal ammo did Pres. Obama just choose to ignore?

Oh, just controlling Supreme Court precedent, in Baker v. Nelson, which explicitly rejected equal-protection arguments for gay marriage. Calling our federal marriage law “legally indefensible” also ignores dozens of court decisions in the last few years upholding marriage as the union of husband and wife at the state and federal level.

Here, for example, is what Maryland's high court ruled in 2007: “Marriage enjoys its fundamental status due, in large part, to its link to procreation. This 'inextricable link' between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members. ... Acceptance of this notion is found in the clear majority of opinions of the courts that have considered the issue.”

Washington's state supreme court in 2006 pointed to numerous standing Supreme Court decisions in upholding marriage as one man and one woman: “[A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple.”

A federal bankruptcy court (In re Kandu) upheld the federal DOMA statute: “Authority exits [sic] that the promotion of marriage to encourage the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents is a legitimate congressional concern.” (146).

And the 8th Circuit just a few years back rejected equal-protection arguments that gay marriage must be recognized: “We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”

(See a summary showing that the majority of courts that have voted to uphold marriage, co-authored by NOM's own Josh Baker and Bill Duncan of the Marriage Law Foundation, here.)

Let me put it this way: The majority of courts, as well as the majority of people, recognize that there is no right to gay marriage.

If even the European Court of Human Rights, if even France's supreme court, and if even the European Court of Justice recognize that marriage as the union of husband and wife is constitutional--what's the matter with Pres. Obama and Eric Holder?

With all this wealth of legal ammo, in addition to common sense, Pres. Obama cannot figure out how to do his job and defend the law?

It gets worse. The most striking thing Pres. Obama and Eric Holder did is to unilaterally declare that sexual orientation is a protected class subjected to stricter scrutiny than laws affecting the rest of us. 
Gay, in other words, is constitutionally to be treated like race or gender.

Not only has the Supreme Court never ever required this, but no federal circuit court of appeals has even ruled on this either, yet. Pres Obama is unilaterally creating new constitutional principles that neither Congress nor our courts have ever acknowledged.

This is how the Democrats, under Pres. Obama's leadership, are responding to an election loss: Do an extra-constitutional end run around the democratic process. In Wisconsin and Indiana, that means fleeing the state to prevent a vote. Here, it's passing by fiat what you cannot get through Congress.

Pres. Obama could not repeal DOMA, as he promised his supporters, by fair means, so he's chosen a foul one.

Pres. Obama could not get legislation declaring sexual orientation a protected class passed by Congress--so he and the left-wing Harvard lawyers he hired are just going to unilaterally declare it so.

He gets to be Congress and Supreme Court too.

Megan McArdle, no fire-breathing social conservative, called it “the Imperial Presidency” on the website of the Atlantic, and she's right!
(I know we have a lot of Democrats who are with us on the marriage issue, and I thank every one of you for your support. This is, or should be, a bipartisan issue. But right now we face political leadership which is lawlessly, aggressively undermining marriage; and we have to stand up for marriage.)
You have to say this for current Democratic leaders, they are demonstrating to their base that they will go to really extraordinary, even radical lengths to deliver.

We would never ask the House leadership to try to match hard leftists' end-runs around our Constitution. We can and do call on them to do what Congress has done more than a dozen times over the last thirty years: Vote to intervene to become a party to this case. Vote to uphold DOMA, since Pres. Obama won't.

(Reminder: Go here to tell your representatives to stop Pres. Obama's illegitimate end-run around democracy and stand up for marriage!)


STOP OBAMA !!! URGENT ACTION NEEDED TO DEFEND DOMA – Congress Must Step Up

Dear  Marriage Supporters,

This may be the most important email I’ve ever sent to you. Please read, take action and forward this message to at least 5 friends immediately.

The Obama administration has just announced that they will no longer defend the Defense of Marriage Act (DOMA) in court. In a statement released this morning, Attorney General Eric Holder explained that President Obama has decided that the definition of marriage contained in DOMA is unconstitutional, and has ordered that the Department of Justice should abdicate its constitutional duty and no longer defend DOMA against constitutional challenges.

This is it. The whole ball game. If we back down here, it will be all over.

It’s a constitutional outrage. Why do we even have courts if the President himself gets to decide which laws are constitutional?

But it’s not too late. Attorney General Holder admitted that Congress now has the ability to step in and defend DOMA. And that’s why we need your help.

Congress has the authority to independently defend the laws which it has passed. And we fully expect that Congress will intervene to defend DOMA in federal court – especially now that the Department of Justice has formally announced that it will no longer do so.

Email your congressman today! Tell them that you expect them to fully support Congressional action to intervene in the DOMA litigation to protect marriage and the Defense of Marriage Act.

It’s outrageous that President Obama would make himself the sole arbiter of whether DOMA is constitutional – our laws deserve a full and fair defense. If the Obama administration refuses to do so, it’s time for Congress to act today!

And don’t forget – Please forward this message to at least 5 friends right away. We need to take action immediately. Don’t let Congress off the hook – ask your friends to join you in demanding Congress to take action today!

Faithfully,

Brian Brown

Brian S. Brown,
President
National Organization for Marriage

NOM in the News: The Fight Has Just Begun!

Maggie Gallagher just told Megyn Kelly that on DOMA, "The fight has just begun!"

Watch Maggie's interview on FOX News here.

Maggie described today's decision as "a truly shocking extra-constitutional power grab" to CBS News.

Here is NOM's response to Obama's announcement that he won't defend DOMA: we will!

Please visit the NOM blog's main page and scroll down for more updates.

*Also* - don't miss this exclusive video of a gay protest in Chicago we made to show why we need to defend our rights!

3 Heavyweights: Whelan, Bradley and Donovan on DOMA decision

Ed Whelan:

2. Attorney General Holder has the gall to claim to be acting consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” There are lots of reasonable arguments in defense of DOMA. The Obama administration has abandoned those arguments for purely political reasons.

3. Holder says that the Obama administration “will continue to enforce” DOMA. But it is logically incoherent for the Obama administration to refuse to defend DOMA and to continue to enforce it. The obvious explanation for this incoherence is political: Obama doesn’t have the guts to take the political heat for not enforcing DOMA, but he’s hoping that his refusal to defend it will lead to court rulings that he can hide behind.

Gerard Bradley:

...this administration has done nothing less than redefine marriage. The argument against same-sex marriage boils down to this: Marriage is the sort of relationship that necessarily requires spouses of different genders. Proponents of same-sex marriage say that marriage has nothing necessarily to do with the gender of the spouses, so it is arbitrary (and thus unconstitutional) for public authorities to limit marriage to male-female couples. The constitutional question depends wholly upon this question about marriage itself, about the reality — or, if you will, the truth — of what marriage is.

Today’s announcement confirms that the Obama administration believes what SSM advocates believe about marriage — not what the vast majority of Americans believe, and not what is reflected in every federal law on the subject.

Chuck Donovan:

Advocates for DOMA and the natural definition of marriage have pointed out from the beginning how flawed Justice’s work on these cases has been. Richard Epstein, who favors same-sex marriage on policy grounds, called it “almost like collusive litigation.”

DOMA’s defenders agree that the strongest argument for its rationality rests on the central purpose of marriage: the effective uniting of a man and a woman and the children they beget into the core unit of society, the family. In his letter, Holder dismisses this concern by noting that Justice “disavowed” any claim regarding “procreational responsibility” in the lower court.

In other words, this trifling matter of fostering bonds between parents for the sake of the next generation was tossed overboard back in port. No need to swim back for it.

National Organization For Marriage Condemns President Obama’s Extraordinary Efforts to Sabotage DOMA Defense

FOR IMMEDIATE RELEASE: February 23, 2011
CONTACT:   Mary Beth Hutchins  at 703-683-5004

NATIONAL ORGANIZATION FOR MARRIAGE CONDEMNS PRESIDENT  OBAMA’S EXTRAORDINARY EFFORT TO SABOTAGE DOMA DEFENSE

NOM Calls on House of Representatives to Intervene to Defend Law

WASHINGTON – The National Organization for Marriage (NOM) responded to President Obama calling upon the Department of Justice to stop defending the Defense of Marriage Act:

“We have not yet begun to fight for marriage,” said Brian Brown, president of NOM.

“The Democrats are responding to their election loss with a series of extraordinary, extra-constitutional end runs around democracy, whether it’s fleeing the state in Wisconsin and Indiana to prevent a vote, or unilaterally declaring homosexuals a protected class under our Constitution, as Pres. Obama just did,” said Brown. “We call on the House to intervene to protect DOMA, and to tell the Obama administration they have to respect the limits on their power. This fight is not over, it has only begun!”

DOMA defines marriage for federal purposes as one man and one woman, and clarifies that states do not have to recognize gay marriage performed in other states.  It was passed in 1996 by bi-partisan majorities and signed into law by President Clinton.  The practical effect of Pres. Obama’s failure to defend DOMA would be to leave a federal trial court’s decision unreviewable by higher courts.

“On the one hand this is a truly shocking extra-constitutional power grab in declaring gay people are a protected class, and it’s also a defection of duty on the part of the Pres. Obama,” said Maggie Gallagher, Chairman of NOM, “On the other hand, the Obama administration was throwing this case in court anyway.  The good news is this now clears the way for the House to intervene and to get lawyers in the court room who actually want to defend the law, and not please their powerful political special interests.”

###