Thomas More Society Responds to Obama’s Decision Not to Defend the Defense of Marriage Act

WASHINGTON, March 2, 2011 /Christian Newswire/ — Last week President Obama and Attorney General Eric Holder, Jr., claimed that there is no justifiable basis for continuing to defend Sec. 3 of the federal Defense of Marriage Act (DOMA). As a result of the President’s and the Attorney General’s conclusions that DOMA is unconstitutional, the Department of Justice (DOJ) will no longer defend DOMA in court. Paul Linton, special counsel, Thomas More Society, a veteran constitutional attorney, has written a response that gives a rebuttal to the letter from the Attorney General. Linton’s response is available here.

Section 3 of DOMA defines marriage, for all purposes of federal law and federal benefits, as the union of one man and one woman. Homosexual activists who want to redefine marriage to include same-sex couples have filed multiple lawsuits challenging DOMA as unconstitutional.

Examples of Linton’s arguments that the DOJ should be defending DOMA include:

• The U.S. Supreme Court rejected the legal arguments that the Constitution protects the right to redefine marriage to include same-sex couples in Baker v. Nelson. Linton’s rebuttal points out that there is a summary decision by the U.S. Supreme Court that rejects major constitutional claims to a right to same-sex “marriage.” DOJ attorneys can make arguments in court that the Supreme Court has already rejected the legal challenges to DOMA. This is an argument the DOJ can use in lower courts because of the Supreme Court precedent.
• Federal courts have upheld the constitutionality of DOMA. Linton lists them in his response. Therefore, the DOJ lawyers can defend DOMA by pointing to these federal court decisions that uphold DOMA.
• Courts have rejected the DOJ interpretation that “sexual orientation” is a protected class like race under the Constitution. The DOJ justification for not defending DOMA relies on its own conclusion that classifications based upon “sexual orientation,” like those based on race or gender, are subject to rigorous review under the Equal Protection Clause of the U.S. Constitution. Linton shows that the DOJ’s reasoning is defective because, even if the DOJ does not agree with those court decisions, it can rely on them to defend DOMA.

“In his letter the US Attorney General wrote that it is only in the rarest case that the Department of Justice should not defend an act of Congress. Based on longstanding law and numerous court decisions, this is not one of those rare cases. The president has the obligation under the constitution to defend DOMA.” said Peter Breen, executive director for the Thomas More Society in Chicago.

About the Thomas More Society: Founded in 1997, the Thomas More Society is a national public interest law firm that exists to restore respect for life in law. Based in Chicago, the Thomas More Society defends the sanctity of human life, traditional family values and religious liberty in courtrooms across the country. The Society is a nonprofit organization wholly supported by private donations. For more information or to support the work of Thomas More Society, please visit www.thomasmoresociety.org.