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legal theories

Will Obama’s DoJ Defend DOMA By Claiming Gays Can Stop Being Gay If They Want?

In handling the latest challenges to the Defense of Marriage Act, for which answers from the government are due March 11, Obama’s Department of Justice lawyers must either defend the federal law by saying it is subject to “rational basis” (the easy test) or “strict scrutiny” (the hard test), the New York Times lays out in an approachable way. The two cases challenging DOMA, of course, are Gill v. Office of Personnel Management and Massachusetts v. United States, which so far have ended in our favor, but which DoJ continues to appeal. If DoJ pushes for the easy test, it must convince a judge, as it’s tried before, that the federal government government has an rational basis interest for maintaining the status quo at the federal level (read: not recognizing gay marriage), while states figure out whether they want to do. That’s a flawed legal theory, The Gays argued, because they can easily show forbidding gays from marrying advances no federal interest, since infertile heteros can marry and gays who cannot marry can still raise children. If DoJ pushes for the hard test, it will run into the issue of whether the Obama administration believes gays can change their sexuality. Yes, really. Because the hard test — used to defend laws that discriminate against certain classes of people, like property or business owners — is hinged upon whether members of the class can leave the class. Which would have DoJ telling the court gay couple that want to be married do not pass this test, since they can just jump to heterosexuality any moment they choose.

  • 5 Comments
    • B
      B

      The obvious choice is to argue that strict scrutiny applies given the documented level of discrimination, and then state that in nearly all cases, sexual orientation cannot be changed (Robert Spitzer, in an evaluation of “conversion therapies”, found that a fraction of gays seem to be able to change their sexual orientations to the point of functioning adequately as heterosexuals, but very few people can do that, so it has no impact legally – just as we don’t expect a typical person to be able to bend in ways that someone who is “double jointed” can).

      In a case like this, the DoJ should simply give the courts the
      relevant facts plus the best legitimate argument in favor of the law (the other side will provide the best legal argument against it) and then let the court make a decision. For example, the DoJ could present the rationale the legislature used when the law was passed, pointing out any part of it that is factually wrong and clearly stating that this was the reason given at the time. For example, “Congress made the decision because we believed A and B plus the now discredited idea that the world is flat, and we aren’t all that sure about B.”

      Jan 29, 2011 at 8:52 pm · @ReplyReply to this comment ·
    • DeGuyz in Mississippi
      DeGuyz in Mississippi

      The State of Mississippi and many entities of the Federal Government have already played a part in possibly the largest discrimination breach in FEMA’s history. Yes the male caretaker turned out to be gay and they all let his mother die with no services ever rendered. I might add that all this happened under a disaster proclamation. So while it has been 5 years and he is still fighting to get the case in front of a federal judge to be vindicated (No attorneys are licensed to represent him in the state)he presses ahead. The DOJ is already awate of this and it really dosen’t matter what they do, you will see equal rights across the board. It is hard to imagine but at some point, it will happen. It’s called a list of demands.

      Jan 30, 2011 at 12:27 pm · @ReplyReply to this comment ·
    • DeGuyz in Mississippi
      DeGuyz in Mississippi

      The State of Mississippi and many entities of the Federal Government have already played a part in possibly the largest discrimination breach in FEMA’s history. Yes the male caretaker turned out to be gay and they did allow his mother die with no services ever rendered. I might add that all this happened under a disaster proclamation. So while it has been 5 years and he is still fighting to get the case in front of a federal judge to be vindicated, (No attorneys are allowed to represent him in the state) he presses ahead. The DOJ is already aware of this and it really doesn’t matter what they do, you will see equal rights across the board on the federal level at some point.I think they even tried to arrest him for exposing this case but as long as everything he exposes is the truth, they can’t stop him. He was hoping they would help since federal laws were violated. “He must vindicate himself” is the federal governments position. It is hard to imagine but it will happen. It’s called a list of demands. http://www.deguyz.webs.com

      Jan 30, 2011 at 12:41 pm · @ReplyReply to this comment ·
    • Sean
      Sean

      They could also do what the Prop 8 proponents tried to do, and argue that it’s too difficult to define who is or isn’t gay, so you can’t consider gays part of a distinct targeted minority (because there are bisexuals and straight people who have gay sex and gay people who are closeted or opposite-married or virgins and oh noes the world is complicated). I think it’s a losing point, because clearly most people have a specific sexual identity (and racial identities aren’t always clear either), but it’s hard to find any part of a legal theory where you can’t wedge some philosophical weirdness into the cracks.

      Jan 31, 2011 at 6:19 pm · @ReplyReply to this comment ·
    • B
      B

      No. 4 ยท Sean wrote, “They could also do what the Prop 8 proponents tried to do, …”

      I’d rather have them use Jerry Brown (at the time California’s Attorney General) as a model. Brown’s office supported Proposition Eight regarding the claim that it was a revision to the state constitution, as opposed to an amendment (a voter initiative cannot initiate a revision). When asked by the court for an opinion on Proposition Eight, however, Brown’s office claimed it was unconstitutional on other grounds. In all cases, the arguments were purely legal ones – at no point did Brown’s office make any derogatory statements regarding any minority.

      Jan 31, 2011 at 8:01 pm · @ReplyReply to this comment ·

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