April 25, 2011 Print

Walking Away from a Promise

by CitizenLink Team

“We saw it coming long ago, and we knew we had to do something about it.”

That’s Chuck Donovan, a senior research fellow at The Heritage Foundation and a veteran of nearly 40 years in pro-family work. He’s talking about the campaign by homosexual activist groups to demolish the principle that marriage is a union between a man and a woman. It began to gain traction with Hawaii’s Supreme Court in 1993 — stopping short of legalized same-sex marriage, but moving in that direction.

States began responding by passing laws defining marriage as the union of one man and one woman. The first was South Dakota early in 1996 — led by Focus on the Family and its associated state organization, the South Dakota Family Policy Council. Other family policy councils — working in tandem with Focus — followed suit, and before the year was over 14 other states had passed laws, with more to come in the following years.

Still, Donovan and others knew that if one state finished that journey, all the others could be forced by federal courts to follow suit.

“It would’ve been like marriages performed in Las Vegas,” Donovan told Citizen. “Once legalized in one state, they’d have to be recognized in all the other states — unless Congress took action to prevent it.”

What Donovan (then an executive vice president at the Family Research Council), Focus on the Family and other pro-family groups did was to build a firewall. They helped develop the Defense of Marriage Act (DOMA), which spelled out, for all federal purposes, that marriage is a union between one man and one woman. It also guaranteed that if any state should legalize same-sex marriage — as several have done in recent years, often on orders from liberal activist judges — no other states would be forced to recognize those marriages.

DOMA, which affects 1,138 federal statutory provisions where marital status is a factor, sailed through Congress in 1996 by overwhelming margins, 342-67 in the House and 85-14 in the Senate. Even most Democrats supported it, by margins of 118-65 and 32-14, respectively. The bill was promptly signed into law by then President Bill Clinton, a Democrat.

Obama’s About-Face
But 15 years later, it’s a law that the current president, Barack Obama, refuses to uphold and defend.

On Feb. 23, Attorney General Eric Holder announced that the U.S. Department of Justice (DOJ) would no longer defend DOMA against further court challenges — a sharp break from the standard DOJ practice of providing a defense for U.S. laws.

Writing to House Speaker John Boehner, R-Ohio, Holder said about DOMA that “the president has concluded that the statute is unconstitutional.”

Holder’s argument, in a nutshell: DOMA violates the Equal Protection clause of the 5th Amendment.Yes, he said, “The (DOJ) has a longstanding practice of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense.” It’s just that “the department does not consider every ‘professionally  responsible’ or ‘plausible’ argument to be a ‘reasonable’ one.”

Beyond that, Holder claimed, cases involving sexual orientation must be subjected to “heightened scrutiny,” the same term courts have applied to claims of racial discrimination. Courts must be “suspicious of classifications based on sexual orientation,” he said. And to Holder, the whole congressional debate during DOMA’s passage was out-of-bounds.

“The (Congressional) Record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships,” he wrote, “precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

Gay activists hailed the dramatic shift in Obama’s “evolving” view of same-sex marriage.  Anthony D. Romero, executive director for the American Civil Liberties Union, said, “This is a great step by the Obama administration and a tipping point for the gay rights movement that will have ripple effects in contexts beyond (DOMA). It will reach into issues of employment discrimination, family recognition and full equality for lesbian and gay people.”

However, a few liberal bloggers in favor of same-sex marriage recognized the problematic and long-term implications. Orin Kerr pointed out how that this move could give the Executive branch too much power — and eventually backfire if it becomes widely used: “Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the presidency. … Winning the presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power.”

“The president and his team are slandering millions of Americans who clearly disagree with redefining marriage,” Donovan said. “They’re essentially equating proponents of DOMA with irrational bigots.”

But the fact that Obama’s Justice Department won’t defend DOMA against court challenges —10 at the latest count — doesn’t mean that no one will.

The House Steps Up
In early March, Boehner announced that the U.S. House of Representatives would have its General Counsel take up the case, so that it would get a proper defense in court and not have its constitutionality decided “by the president unilaterally.”

Among DOMA’s most influential champions is Rep. Lamar Smith, R-Texas, who is the chairman of the House Judiciary Committee.

“The vast majority of the American people believe that the preservation of marriage between a man and a woman is critical to society’s stability and in the best interest of American families,” he stated. “It is not the role of the courts to redefine that institution and impose it on American society. The people alone — through their elected representatives — have that role and responsibility. And the president and his administration are duty-bound to defend those laws in court.”

To Smith, it was clear long ago that Obama did not intend to fulfill that duty. So back in October, working with the Alliance Defense Fund, Smith filed a brief on behalf of DOMA in two court cases (Gill et al v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services).

His argument: He needed to step in because the DOJ, while it was supposedly defending DOMA, was actually torpedoing the case — in the interests of Obama’s policy agenda.

Sabotage Campaign
Smith isn’t the only one to make that point. Take constitutional scholar Ed Whelan, president of the Ethics and Public Policy Center, former clerk for U.S. Supreme Court Justice Antonin Scalia and legal affairs contributor for National Review’s Bench Memos.

“Obama’s DOJ was sabotaging the DOMA cases from the outset,” Whelan told Citizen. “It was a purely political decision, driven by the Obama administration’s desire to cater to supporters of same-sex marriage.”

Whelan’s point is vital — and, when you examine history, undeniable. Obama came into office not only supportive of homosexual groups and goals, but also beholden to them.

From the start, as The Washington Post reported last July, Obama “quietly used his powers to expand federal rights and benefits for gays and lesbians,” changing scores of federal rules “to advance the agenda of a constituency that strongly backed the president’s 2008 campaign.”

The individual changes weren’t dramatic, but taken together, they “significantly alter the way gays and lesbians are viewed under federal law,” The Post wrote. It was an effort “made largely under the radar — and outside the reach of Congress.”

At the time, Obama’s only major formal departure from the gay agenda was on the issue of same-sex marriage, something he publicly said he opposed.

Gay activists and their allies were skeptical that Obama really opposed same-sex unions, especially since he openly opposed DOMA, which he called “unnecessary” (see “Where He Really Stands”). Although they grumbled, activists publicly gave him a pass on this one issue.

But they didn’t give him a pass on something else: The DOJ doing its job — that is, defending the duly enacted laws.

In June 2009, the department filed its defense of DOMA in Smelt v. Orange County. It was the first DOMA case since Obama took office, and activists were furious. They complained vehemently, and they got results.

In August, the DOJ filed another brief in the case that one blogger on legal matters — DOMA opponent Dale Carpenter of the University of Minnesota — described as “a gift to the gay-marriage movement.” The appeal went out of its way to criticize both the law itself and its premises.

“The government does not contend that there are legitimate government interests in ‘creating a legal structure that promotes the raising of children by both of their biological parents,’ ” the DOJ wrote, “or that the government’s interest in ‘responsible procreation’ justifies Congress’s decision to define marriage as a union between one man and one woman.”

That was the start of a downward trend in DOMA’s “defenses.” From then on, legal arguments would have to reflect Obama’s “policy values,” Tony West, head of the DOJ’s Civil Division, told the website TPMMuckraker last November.

West said that the department coordinated its arguments with a “liaison to the gay community.” “We disavowed some arguments that we believed had no basis in fact,” and presented courts with “information that seemed to undermine some of the previous rationales that had been used in defense of that statute,” he added.

But what West didn’t say, Whelan noted, is that “the arguments DOJ disavowed are ones that George W. Bush’s administration had used successfully in defending DOMA from attack” in several court cases.

The most central argument: that the government has a powerful interest in promoting the raising of children by a married mother and father as the social norm.

And that was one of the key points Rep. Smith made in his federal court brief.

“There is no reasonable explanation why the DOJ would abandon such widely accepted arguments, but for the president’s policy preferences,” said Smith’s attorneys. “It is clear, then, that the DOJ considers the president its client, not Congress. When the client changed, so did the DOMA’s defense.”

Now that Obama has officially abandoned DOMA’s defense, there’s no doubt that Smith was ahead of the curve — and that members of Congress will take the lead on its behalf. And that, to the law’s supporters, is a blessing.

“Obama’s announcement just makes explicit what was already going on behind the scenes,” Whelan said. “Now Congress can step in and defend the law properly.”

“The Defense of Marriage Act is a crucial piece of legislation,” Donovan added. “It deserves the skilled advocacy of top-notch attorneys. At least now we know it never had a prayer of getting that from Team Obama.”

California Scheming
Right after Holder’s announcement that the Justice Department was ditching DOMA, a funny thing happened in the state of California.

Lawyers seeking to overturn the state’s Proposition 8 — which affirms that only marriage between a man and a woman is legal in the Golden State — filed a 23-page motion with the 9th U.S. Court of Appeals. Nothing unusual about that, except that they cited specifics from Holder’s letter to John Boehner — less than half an hour after it had been released.

That was quick. Too quick, the Family Research Council said.

“This lightning-fast citation of the letter into a major judicial document is highly suspicious,” said FRC President Tony Perkins. “Our concern is that the Department of Justice has been collaborating with the litigants in the Proposition 8 case behind the scenes.”

Perkins decided to find out. FRC filed a Freedom of Information Act request for all emails and other correspondence sent between the DOJ, certain law firms and gay-activist groups in the previous month.

The results of FRC’s investigation were still pending at press time, and Perkins said Americans of all political stripes should care about what FRC finds.

“If there is a quiet partnership, the alliance would be both unethical and highly damaging to America’s rule of law,” he stated. “Regardless of your political leanings, it should be obvious that a Department of Justice that collaborates with opponents of federal law to strike it down is clearly an example of a political system run amok.”

Out in California, Ron Prentice had no doubt what was going on.

“It was almost comical one morning, reading about DOJ’s refusal to defend DOMA and then, just hours after, seeing the Prop. 8 opponents using Holder’s letter for their purposes,” he told Citizen. “It’s pretty obvious they’re working hand-in-glove.”

Prentice has a unique perspective. Not only is he a former executive with Focus on the Family, he is a licensed marriage and family therapist and CEO of the California Family Council, a Focus affiliate.

Like Obama and Holder, California’s executive-branch officials charged with defending state law — former Gov. Arnold Schwarzenegger, current Gov. (and previous Attorney General) Jerry Brown and current Attorney General Kamala Harris — have refused to do their duty. So groups like ProtectMarriage.com have to do it instead.

“We’re arguing that Prop. 8 supporters have legal standing to defend it in court, and we expect to win that argument,” Prentice said. “Otherwise a government could veto any people’s initiative just by refusing to defend it.”

California is one of 31 states where the people have voted to protect the definition of marriage. But, being California, it’s an especially important one.

Prop. 8 was declared unconstitutional last Aug. 4 by a liberal federal judge, Vaughn Walker, but two weeks later his ruling was suspended on appeal. The case is now working its way through both the state and federal court systems, and the battle figures to play out over several years.

As essential as the definition of marriage is, Prentice sees something else ultimately at stake: freedom. That’s because he’s seen Prop. 8 supporters subjected to a campaign of harassment that can only be called vicious — thanks to state campaign-finance laws that make their names public.

He personally knows dozens of the victims. Businessmen who faced threats and vandalism. Employees whose bosses got phone calls demanding to know “why you hire bigoted people.” Worshipers whose churches were besieged by angry mobs. Performing arts administrators who were persecuted till they had to leave their jobs. A realtor whose home openings were picketed. A donor who was personally attacked as hateful in a TV ad. Prentice could tell the stories all day.

“What’s especially sad to me is how often the activist opponents of Prop. 8 actually cheer when they hear these stories,” he said. “Their objective reaches much further than to succeed for a cause through the democratic process. Their objective is to attempt to intimidate and attack people into fearful silence. That’s what we’re up against.”

The Kennedy Factor
Down the line, both Prop. 8 and DOMA will probably end up before the U.S. Supreme Court. Legal observers think Prop. 8’s chances of being upheld are pretty good. However, they don’t know about DOMA.

The reason? Two words: Anthony Kennedy.

Frequently the high court’s swing vote, Kennedy is said to be reluctant to mandate same-sex marriage outright.

Kennedy might go for steps that would ultimately lead to the same result. Like ruling that it’s unconstitutional to discriminate against any legal homosexual marriage.

“The theory is that he will accept an incremental erosion of marriage rather than a complete and immediate overhaul,” said Bruce Hausknecht, judicial analyst for CitizenLink.

There’s some relevant history here. Kennedy wrote the majority opinion striking down a state sodomy law in Lawrence v. Texas (2003), saying among other things that there is “no legitimate state interest” in the moral status of homosexuality. At the time, Kennedy said that he wasn’t addressing “whether the government must give formal recognition to any relationship that homosexual persons choose to enter.”

In dissent, Justice Antonin Scalia warned that Kennedy had done exactly that.

“Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,” Scalia wrote.

“Kennedy’s pride might prevent him from proving Scalia correct with an immediate vote for same-sex marriage in a case like the Prop 8 challenge, so the theory goes,” Hausknecht said.

“But Kennedy is fond of looking for ‘an emerging awareness’ toward social change to achieve his goals, and he’s not above helping the change along by an incremental case or two. That’s what the gay activists are hoping for.”

Groups attacking DOMA hope to win Kennedy’s vote for the notion that it’s unconstitutional to discriminate against legally married gay couples, thus producing the result DOMA was designed to guard against: a country where all 50 states must recognize such unions.

They also hope to cement into law the Obama administration’s idea that cases involving homosexuality need “heightened scrutiny.” Which just raises the stakes for the battles ahead — battles that are simultaneously legal, political, cultural and spiritual.

Prentice said he’s up to those battles, and he’s encouraged to see how many other people are, too.

“For all the hostility we’ve encountered, I’m seeing people respond to these kinds of threats with renewed determination and sacrificial support,” he said. “They know how important it is.

“A pastor I know put it best: ‘We’re not fighting just another political and legal battle. We’re fighting to preserve God’s design for the family as the best building block of society. It’s as basic as that.’ ”

Matt Kaufman is a freelance writer based in Illinois and a former associate editor of Citizen.

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