A judge dismissed a California gay couple's lawsuit claiming that the federal Defense of Marriage Act (DOMA) is unconstitutional, a week after U.S. Justice Department lawyers defended the law.
The couple had argued that the law, which prohibits federal recognition of same-sex marriage, discriminated against gay men and lesbians. U.S. District Judge David O. Carter ruled that the court lacked jurisdiction to consider the broader constitutional questions.
During his campaign, Obama promised to work for DOMA's repeal. While defending the law, government attorneys wrote that it was discriminatory. "This administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal," they wrote.
Here's more from the Associated Press:
Brian Raum, a lawyer for the Alliance Defense Fund, a Christian legal group that has joined the government in defending the federal marriage law, said Carter was right to dismiss the case on procedural grounds.
The federal government cannot be sued in state courts, Raum said.
Smelt and Hammer's lawsuit could be back in a federal court in a matter of months, when "ultimately it will come down to the merits," he said.
Earlier this year, a gay rights group in Massachusetts filed a lawsuit challenging the Defense of Marriage Act on constitutional grounds, and the state brought a separate case arguing that the law interferes with its right to establish its own marriage laws.
Posted by Sarah Pulliam Bailey on August 25, 2009 8:00AM

Comments
President Obama has been all over on this issue, depending on whom he was addressing. I was okay when he said he did not agree with gay marriage himself but thought there should not be legislation against it. I notice he never says that any more. My biggest disappointment with him (and I actually voted for McCain) is that he seems very much a politician. No better and no worse than other politicians....but definitely a politician.
Posted by: Fraulien at August 25, 2009
Said Fraulien: "My biggest disappointment with him (President Obama) is that he seems very much a politician." The poll numbers show that disappointment, too.
Mark Twain said quite perceptibly: "There is no distinctly Native American criminal class...save Congress." I would expand that to all of our elected officials and the cronies they appoint. And I would add this: love your country; but never trust the government. Hopefully, same sex marriage is never given constitutional status. If it is then there is no logical reason to deny polygamists status as well...then polyamorous relationships will be next, followed by really, really creepy stuff.
Posted by: Dan at August 25, 2009
The First Amendment gives same sex marriage Constitutional status...the right to petition one's courts and governments for redress of grievances, for starters.
And of course, when it comes to "the other" claiming equality under the law, the religious right has always hated that part of the First Amendment, especially when coupled with the 13th, 14th and 15th.
Which is why, of course, that the religious right wants to savage America's highest ideals, as usual, with an amendment that would strip First Amendment rights from Gay people when it comes to full citizen equality in marriage. As defenders of slavery and Jim Crow, and opposition to woman's suffrage and "mixed marriage," equality under the law has always been the unforgivable, unpardonable sin.
Posted by: Gregory Peterson at August 25, 2009
Quoth GP:"...the religious right wants to savage America's highest ideals..." Let's put it to a vote to our founding fathers since they articulated our highest ideals. All of you in favor of same sex marriage, raise your hands. Looking...Looking...Looking. Nope. Don't see any hands. Sorry, GP. I don't think there were any constitutional signers that were in favor of same sex marriage. So, I'm thinking they would say that not allowing same sex marriage doesn't violate any constitutional principle. So then, let's check all of recorded history. Nope. Don't find it there either. Seems like same sex marriage is pretty much a recent fringe innovation. And seems like the "religious right" are on the side of history, too. And, GP, nobody says you can't marry - it just has to be the right gender. Except in certain states. So, if you want to marry someone of the same gender, go there and get married to whomever you want to. I will send a gift. But apparently you think the constitution says and means whatever you think it says and means. But this is not Wonderland.
Posted by: Dan at August 25, 2009
The highest ideals, as Lincoln reminded the nation, are: All men are created equal, with inalienable rights. Not majority determined privileges and grudging tolerance, but equal rights, period.
The Declaration of Independence isn't law. It isn't even all that trinitarian Christian based, but much more Unitarian/Deist influenced. But, nevertheless, it gives form to America's highest ideals of justice, of full citizen equality; justice too often deferred, opposed, or neglected but an ideal to strive to attain.
That ideal wasn't applicable to Black men back then, or all women, but the arc of American History has expanded that to: "all citizens are created equal...except for Gay people."
Gay marriages are treated by the Federal Government and most states as if Gay people were slaves or almost like slaves...just not legitimate...not recognized by governments. Some people will get outraged at me comparing Gay people with enslaved people, which Gay people are not, but I'm comparing only marriage and relationship legal legitimacy.
That Gay marriages, all civil rights for everyone, aren't legitimate everywhere in the country is unconscionable, unacceptable, pure bigotry, pure greed. Gay people may get to vote, but as they are a minority, and always will be...the Gay block vote is only meaningful in close elections. 52 percent can take away a basic, established civil right in California, for instance. That's unacceptable. That's hypocrisy, greed and just plain evil in inglorious action.
A majority of the people can outvote a minority community, just like that. That's why we have civil rights, governments sworn to uphold the Constitution and courts...the First Amendment right to petition our governments and courts for redress of our grievances is in the first amendment, after all, not the tenth.
Civil rights are not to be voted upon, they are to be upheld by the living Constitution. Our courts don't discover a civil right, they recognize a civil right when they see it (and sometimes, as in "Plessey," they don't see it.)
Our civil rights, recognized and still unrecognized, have already been legitimized by the Constitution, despite the fantasies of racists, bullies, the timid and the bigots.
You're like someone in the Bible Belt of my youth, pointing to the 15th Amendment as proof that Voting Rights Acts were not needed, as Black people have the right to vote...if they meed the same qualifications as everyone else.
Disingenuous, but not a moral argument then, as your argument is not a moral argument today about Gay people and their relationships.
The Constitution begins, "We the people..." The people are also Gay people.
The Constitution does not begin "We the states..." Full citizen equality, all civil rights, are fully equal in all states, as the Civil War established the hard way. The Constitution wasn't legitimated by the states, the Articles of Confederation was, and that didn't work out. That's why the Constitution and the Bill of Rights were legitimized by The People.
The Constitution was legitimated by the people for the people, not for the majority of people. The majority legitimates government, but does not capriciously give or take basic civil rights away from law abiding citizens. People such as the average Gay person.
Civil Rights don't go away simply because a bare majority of people don't "like" Gays for stupid reasons, and they certainly are stupid reasons, at least the ones I read in CT. Really, how do the editors of CT sleep at night, anyway?
The Constitution certainly does not begin with: "We the certain sort of people the religious right has approved."
The founding fathers condoned slavery. They generally had an antipathy to slavery, but condoned it nevertheless. Justice for some, but not for others was condoned as expedient, a compromise, what was needed to get the country into a shape that would endure...but it almost didn't, because of slavery.
Still, the arc of American history was to "All men really are created equal." Slavery is no more...Jim Crow is dead...but stupid, self serving, nakedly greedy bigotry is apparently alive and well nevertheless...and using the same arguments and political tactics to puff itself as God's word...God's law.
Who's Gay owned business do you covet...what Gay occupied job do you think should go to someone you approve of...what Gay relative's estate do you think should go to you or a relative of his, instead of his, in his eyes and heart, loving companion...what leadership position in your church should go to you or your friend, instead of that very competent and learned Lesbian over there?
Greed, unconscionable greed and unearned power, that's what the religious right has always been about...the endless clobber verses and disingenuous arguments such as yours...they're at their core, just about naked greed and stealing power that they haven't earned.
The Constitution approves of Gay people, even if the founding fathers never thought there would be Gay people in the future, and had an antipathy towards same-sex oriented relationships of their day. The didn't think there would be Charismatics or Buddhists either. They thought that slavery would just wither away, instead of being the root cause of a horrible Civil War.
So...are you for American ideals? I think not.
Speaking of slavery (my Grandfather was born when slavery was legal and the Civil War was raging, with his future father in law soon to be marching with Sherman)...as I said, the marriages of slaves weren't recognized. Their bodies weren't their bodies, their money wasn't their money, their children weren't their children. Gay people can sympathize, even as they can't be bought and sold, even if they have suffrage, they still don't have full citizenship. Gay marriages, Gay relationships are capriciously recognized or not recognized, tolerated or not tolerated. Their estates don't necessarily go to their loved ones, even with expensive legal work. Their children can be, and have been, manipulated by bigoted judges in custodial cases.
Gay people generally have tolerance, but tolerance is capricious and informal. That's not enough. Tolerance is better than oppression, but tolerance isn't justice. Equal is equal... that's the only thing that I will accept.
Posted by: Gregory Peterson at August 25, 2009
The arguement presented by Gregory sounds reasonable until you realize it is wrong starting with the use of gay. Gay is a person who is overly happy, it's a state of personality and has nothing to do with sex or the way of doing sex. Homosexual is a person who does sex with the same gender. The wrong definitions are given. The United States is not a democracy, it is a republic. "We the people..." means just that, the people rule, not kings, queens, politicians, judges, parties, etc. but the people and if the people say they want something this way or that way, the majority is going to rule just by the law of mathematics. Abortion is a good example. The murder of the unborn hasn't been voted on by the people but put into effect by legislature. We, all of us, are at one time or another in the minority, none of us are always in the majority, this isn't socialism yet where everyone is to be on an equal basis usually meaning economically equal. When the word equal and rights are used, it means we are born in the status of having the ability to accomplish, move up and down the ladder unlike in other countries where the status you are born at means you stay in the manor or you're outside the manor and you can't change your status. Otherwise you're born poor you stay poor, you're born rich, you stay rich. It's still like that in many countries of today. The guarantee of the right to disagree politically with anyone in power is the biggee equal right, witness the difference between Iraq and the U.S. You also have the equal right of facing your accuser in a court judged by your peers. This is not an equal right in other countries. Tn them, you have to prove you are innocent as you are assumned to be guilty. Equal rights in our Constitution has nothing to do with who can be married. It means equal rights before the law if you are arrested. You have a right to an attorney paid for by the government. Other countries women can't even appear in court if they are on trial, only men can. Really, don't milk our equal rights so low that they are meant for something as redefining marriage when equal rights are meant for much more life and death situations which our forefathers knew only too well. They did not have their minds on redefining marriage, they had their minds on rights under the law being the same for the rich man and the poor man and the right for free speech against the ruler(s). The Constitution came out of a war, a Revolution, not the changing of English words for the convenience of a few.
Posted by: Original Anna at August 25, 2009
GP: Re: Anna's quote. Well, there you are, GP. Your approach to interpreting the constitution is similar to the Red Queen's approach to defining words: "A word means whatever I want it to mean." But this isn't Wonderland.
Posted by: Dan at August 26, 2009
No, Anna, equal rights is about justice, and justice isn't just about being arrested, about bringing evil doers to justice. Equal rights to the ballot box, for instance, which the religious right has traditionally opposed is justice. Equality in freedom of speech, which the religious right has traditionally opposed, is justice. Equal access to government functions, which the religious right has traditionally opposed, is justice.
Freedom of movement, which the religious right has traditionally opposed, is justice. Equal police, health care and fire protection, which the religious right has traditionally not delivered when they could, is justice. Equal access to libraries, schools, universities, zoos, museums, businesses, which the religious right has traditionally opposed, is justice.
Justice for some, but not for others...privilege for some instead of rights for all...that's what the religious right has traditionally supported...and tried to legitimize with endless Bible clobber verses, for starters, historical fantasies, such as "states' rights...".
The English language isn't a fixed thing. Words have more than one meaning (I saw a saw...), social constructs, labeled and described by words, change...meanings drift over time. Names can be chosen from non-traditional sources (think Moon Unit Zappa). "Gay," the gay life, long had an urban meaning beyond what you said that it can only be defined. Evolving from that urban history, Gay has become the consensus name for a great, world wide, multi-ethnic, meta-community.
Not calling people and communities by their preferred names, deliberately disrespecting them in such a manner, is a gross, obscene insult. That's likely why the religious right goes to great lengths to use "homosexual" instead of Gay, GLBT, SGL and such. They are deliberate haters,those who use "homosexual" and they aim to be deliberately demeaning, uncivil, rude, to dehumanize Gay people, to make Gay identity and community only about sex, actual and imagined.
Just as they once tried to make justice exclude those having "one drop" of African blood; to make suffrage just about one's XY chromosome (though that hadn't been discovered.)
There are rights, duties and privileges. A driver's license is a privilege you earn, but you have rights in accessing that privilege. I can't be denied a license because I'm an artist and we know all about those people...for instance. There is equality in access of that privilege.
And so it is with marriage. If some people can get state recognized marriages, then there are basic civil rights in accessing state recognized marriages. Simply because something has not been done before, which is unlikely anyway, doesn't mean that nobody has a civil right to do it. Tradition isn't fixed, authoritarian, forbidden from changing; tradition is a living thing that changes with time and circumstance.
Marriage is one of those things. Once marriage was separated from woman as property, woman as certified pure by their makers, their fathers; separated from the concept of woman in a state of perpetual subservience; when adultery began to have the same meaning for both husband and wife...
...when marriage was separated from only male inherited privilege, male controlled property, the production of "legitimate" male heirs with only certain, certified "pure" women...then marriage was redefined into marriage as a new social construct: Marriage as a legally recognized union of love between consenting adults. If "other sex oriented" people can play that marriage game, so can Gay people.
There is no such thing anymore as an "illegitimate" child. All my children, by any woman, married, known and even forgotten... has equal claim upon my estate (such as it is). That's a recent innovation in marriage.
Before, only my legitimate children could claim my estate. In olden days, my legitimate male heirs could claim my estate...but wait...they only think they're "legitimate." The son by my first wife, whom I so callously abandoned, as divorce was forbidden, is the sole heir. My second marriage was illegal. Not being legitimate, the fifteen children by my illegally married wife have no claim upon my considerable estate. (Yea, right.)
Or, it turns out that my wife is the daughter of a runaway slave who had then "passed" as "white." Therefore, my wife and children are legally forbidden to inherit my considerable estate. Our marriage was illegal. She is legally the slave of someone, and any marriage she is in is not recognized as such by the state. My near do well cousin gets it all. My wife and children are claimed by their legal "owner," and then sold down the river.
The children and marriages of enslaved people was always "illegitimate," not recognized by the state, even if only one was enslaved, and the other, the richest man in the state.
Marriage is now based upon consent and love, not legitimacy, a very recent innovation, though property and inheritance are still a part of it. We are expected to take care of all of our children these days, regardless of the mother; to take mutual responsibility for our companions in life, regardless of marital status, and not just for our legally married wives and our so called legitimate children. All children are legitimate.
So, if our governments recognize some companions in life, married or not, but not others...then we should worry about the civil rights of everyone.
If I can be sued for palimony, and can sue for palimony, then I should have had the right to marry my pal as well, if he could and would consent to marriage. That's basic fairness, something the religious right has traditionally opposed. I should expect our governments to honor that marriage, equally with all other marriages. We should expect equal access to legal marriage...and accept equal responsibility.
Posted by: Gregory Peterson at August 27, 2009
GP et al: Just several questions - no satire, sarcasm, etc. intended:
1. If same sex marriage is ratified, shouldn't by logical necessity polygomy be allowed? Polyamorous marriage? Marriage of people and animals?
2. Would the term civil unions satisfy the gay community just as well as the term marriage? (see, I didn't use the word homosexual because you said that word was offensive - I didn't know that until now)But I don't see the difference between civil unions and marriage.
3. What would the legal ramifications be if same sex marriage was ratified? In other words, what would legally happen to traditional Christians who preach against the gay lifestyle? Several years ago a Pentecostal preacher in Sweden was jailed for hate speech - he preached against homosexual (their word) behavior.
Posted by: Dan at August 27, 2009
There isn't A Gay lifestyle, anymore than there is A straight lifestyle. To say that there A Gay lifestyle is a racist like attempt to dehumanize "the other." So, people who preach against THE Gay lifestyle are obviously complete bigots. Why would you want a complete bigot as the head of your church?
No, civil unions are better than nothing, for Gay couples in need of legal papers to be responsible for each other, I guess. But, civil unions set up a second class arrangement of couplehood, a separate but equal arrangement. As American history quite illustrates, shows that forcing some people into a second class citizenship category is a grave injustice.
Marriage is about love and consent, these days. Animals can't consent to be married. While I can think that my dogs love me...but that's anthropomorphism, projection. I don't really know if my dogs "love me" in a way that humans love each other. My dog can't give consent to marry me.
When a dog can make a case in court about contract law and inter-species marriage...well, what an interesting world that will be. Until then, as long as we demand consent to be married, dogs won't be legally married to humans.
Generally, it's very conservative religious who make the case for polygamy, using their sacred texts to make their case. Polygamy as traditionally practiced, gives short shrift to the older wive's consenting for a new wife.
So, traditionally practiced, patriarchal polygamy would not be legal in our country, I would think. Earlier spouses in a modern, polygamous marriage would need to sign the marriage contract as well as the new wife or husband. So, the decline of patriarchy and the need to get the consent of all wives or husbands in the household, would be a check on widespread polygamy, anyway.
So, if the religious right wants to strengthen marriage, it should stop dismissing, slandering...the constant denigration of the importance of adult consent...unless you really, really want marriage to be arranged in the Leviticus way. I suspect that you don't, really.
Posted by: Gregory Peterson at August 30, 2009
If a man wants to marry his Lassie - I say go right ahead as long as he can get Lassie to consent to the union.
Polygamous relationships were practiced for quite sometime. In some cultures they still are today and these cultures are very anti-homosexual to the point of death. I really don't see the correlation.
If civil unions conveyed the exact same rights as marriages do, then there's no issue. Currently such laws are however creating second class peoples and that's not what our constitution allows.
Allowing gay marriages would have no impact on what a church wants to preach. A church is impacted only on discrimination issues. A church cannot practice discrimination and still expect to have tax exempt status. This would not be fair would it? How do you justify a church discriminating against people whose taxes it gets?
Churches preach about adultery (well very rarely, but they still do.) They will still be free to preach about gay marriages as well.
And no such event of a Swedish pastor being jailed for preaching about homosexuality actually occured.
http://www.boxturtlebulletin.com/2008/10/29/5506
Is just one link that I found explaining exactly what transpired.
The law states : No religion will be required to change its religious policies with regards to same sex couples and no officials will be required to solemize a marriage in contravention of his or her religious beliefs
Posted by: Justin at August 31, 2009
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