Lawsuit Filed in Freedom of Information Act Request Over DOMA


Via the Judicial Watch press release:

Judicial Watch announced today that it filed a Freedom of Information Act (FOIA) lawsuit on August 29, 2011, against the Obama Department of Justice (DOJ) on behalf of the Family Research Council (FRC) for records related to the DOJ’s decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) in any pending or future litigation.

FRC seeks documents from the DOJ’s Civil Rights Division to determine the purported basis for the decision and the possible influence of homosexual activists on the decision. In a separate lawsuit, Judicial Watch attempts to obtain some of these same documents.

... “When Barack Obama became president, he took an oath to uphold our laws – and not just the ones with which he personally agrees. If he’ll undermine this law, which one is next? This isn’t just a threat to marriage. It’s a threat to the entire democratic process. If the Obama administration has nothing to hide, then why stonewall?” stated Family Research Council president Tony Perkins. “We have serious concerns that the Justice Department wants to hide evidence that it was doing the bidding of campaign donors and homosexual activists from whom Obama will need assistance for his reelection.”

“Once again the Obama administration is playing politics with the Freedom of Information Act to avoid telling the American people the truth about one of its indefensible positions,” said Judicial Watch President Tom Fitton. “The evidence suggests the nation’s highest law enforcement is refusing to enforce the law to appease another special interest group.”


  1. Posted September 1, 2011 at 2:31 pm | Permalink

    Ed Whelan explains it

    For all its flaws, the Obama administration's decision to abandon its formal defense of DOMA has the modest virtue of making overt a far greater scandal that the Obama administration has been attempting to obscure: namely, that the Department of Justice has only been pretending to defend DOMA but in fact has been actively sabotaging it.

    Here is the overarching narrative (a similar version of which could be recounted for the Department's deliberate mishandling of "Don't Ask, Don't Tell" litigation[17]):

    1. On June 11, 2009, in Smelt v. United States, No. 09-286 (C.D. Cal.), the Department of Justice in the Obama administration filed its first brief in defense of DOMA. In straightforward and unremarkable legal prose, that brief argued that the claim of plaintiffs, "a same-sex couple married under the laws of California," that DOMA is unconstitutional should fail for various reasons.

    2. The Obama administration's opening brief in Smelt elicited a firestorm of opposition and outrage from gay and lesbian groups. As one gay publication put it (in an article titled "Gay Blogosphere Erupts Over Obama's DOMA Defense"[18]), "The gay blogosphere lit up like a firecraker [sic] Friday on news that the Obama administration was defending the Defense of Marriage Act ... in a federal lawsuit." One "[p]rominent blogger" called the brief "despicable, and gratuitously homophobic"—among other things, because he somehow found it objectionable that "the brief argued that DOMA is reasonable..., is constitutional ..., [and] wasn't motivated by any anti-gay animus." Another labeled President Obama "the homophobe in chief." The head of the Human Rights Campaign wrote President Obama a letter stating that "this brief would not have seen the light of day if someone in your administration who truly recognized our humanity and equality had weighed in with you." And much, much more evidently went on behind the scenes in meetings between the Administration and gay and lesbian advocates.

    3. In a stark demonstration of the power of a purportedly powerless group, the Department sharply altered the course of its advocacy. In its reply brief in Smelt, filed on August 17, 2009, the Department prominently stated (p. 2 (emphasis added)):

    With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

    This halfhearted advocacy contradicts the promises made in confirmation testimony by the Department's political leaders. As a typical example, then-Solicitor General nominee Elena Kagan testified at her confirmation hearing that the "critical responsibilities" that the Solicitor General owes to Congress include "most notably the vigorous defense of the statutes of this country against constitutional attack."[19] She made clear the obvious point that an effective advocate must give the impression that he believes his own arguments, whether or not he actually does.[20]

    It gets much worse. In that same reply brief (pp. 6-7), the Department gratuitously repudiated grounds for defending DOMA, as it asserted that "the United States does not believe that DOMA is rationally related to any legitimate interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality." Never mind that these grounds had proven successful in previous litigation against DOMA[21] (as well as in challenges to traditional marriage laws). And never mind that, as the Department's opening brief had pointed out, the "United States," in the form of a report of the House Judiciary Committee, had invoked these very interests when Congress enacted DOMA.

    A proponent of same-sex marriage promptly celebrated the Department's reply brief with these apt observations (emphasis added):

    This new position is a gift to the gay-marriage movement, since it was not necessary to support the government's position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.[22]

    4. Thereafter (and up until its outright abandonment of DOMA), the Department took this same position in every DOMA case, and ultimately engineered the desired result. In Gill v. OPM (D. Mass. Jul. 8, 2010), the lone judge to rule against DOMA noted that "the government has disavowed Congress's stated justifications" for DOMA and stated that he would therefore address them "only briefly": "This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA."

    5. In November 2010, Assistant Attorney General Tony West, the head of the Department's Civil Division, told a group of liberal bloggers that it was "difficult" for the Obama administration to defend DOMA (and "Don't Ask, Don't Tell"). West admitted that the Department was modifying and diluting its legal arguments in DOMA cases to comport with the Obama administration's "policy values." As one sympathetic account[23] put it (emphasis added):

    West said Monday that DOJ was discharging its responsibility to the tradition of the Justice Department while making adjustments to the arguments in line with the administration's views.

    "I think that the best example -- let me give you one -- in the Defense of Marriage Act -- you'll notice that we have not only discharged our responsibility to defend the constitutionality of a congressional statute, but we've done so in a way which reflects the policy values of this administration," West said.

    "We disavowed some arguments that we believed had no basis in fact, and in fact we presented the court through our briefs with information which seemed to undermine some of the previous rationales that have been used [in] defense of that statute," West added.

    According to the same account (emphasis added), West further revealed that the Civil Division "has worked with the Civil Rights Division's liaison to the gay, lesbian, bisexual and transgender community to make sure that future briefings don't advance arguments that they would find offensive." In other words, West was conceding that the Department was allowing the sensitivities of a favored political constituency to have extraordinary influence over how the Department defended, or pretended to defend, DOMA.

    In sum, far from providing the vigorous defense of DOMA that it promised, the Obama administration undermined that litigation for the obvious purpose of pleasing a powerful and favored political constituency.

  2. Randy E King
    Posted September 2, 2011 at 12:03 pm | Permalink

    Obama's willful subterfuge on DOMA must be addressed.

    Those that stood and cheered as this current administration fiddled whilst Rome burned are accomplices in this willful assault on our constitution.

  3. John Noe
    Posted September 2, 2011 at 9:41 pm | Permalink

    Michael E's post is so brillant it should be its own blog.

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