Tag Archives: Defense of Marriage Act

Navy Sued For Records Aimed at Exposing Deception of Congress Over Repeal of “Don’t Ask Don’t Tell”

The Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, whose mission includes restoring America’s Judeo-Christian heritage and promoting a strong national defense, announced Tuesday that it filed a Freedom of Information Act (FOIA) lawsuit against the Department of the Navy. The lawsuit seeks to obtain records that the plaintiffs believe will show intentional deception by the Pentagon to gain congressional support for repeal of the 1993 law regarding open homosexual conduct in the military, usually called “Don’t Ask, Don’t Tell.”

Prompting the lawsuit was a Department of Defense Inspector General’s report which suggested that a distorted Pentagon study of homosexuals in the military was produced and leaked solely to persuade Congress to lift the ban on open homosexuality in the military (Repeal of “Don’t Ask, Don’t Tell”).

Erin E. Mersino, the Thomas More Law Center attorney handling the case, explained the reason for the lawsuit, “The Department of Defense and the Department of the Navy have failed to produce a single document despite numerous FOIA requests over the last two years for information to uncover the truth surrounding the congressional repeal of Don’t Ask, Don’t Tell.”

The lawsuit was filed in the U.S. District Court in Washington D.C. on behalf of Plaintiffs Elaine Donnelly and the Center for Military Readiness (CMR). Plaintiffs are seeking information to determine the extent to which the Department of the Navy engaged in a campaign of deception as suggested by the Inspector General’s Report.

The Plaintiffs are also seeking the information to determine the extent to which the Department of Defense and the Department of the Navy fulfilled the requirements mandated by Congress for the repeal of “Don’t Ask, Don’t Tell” to become valid law. Congress required specific regulations and procedures be implemented to protect national security prior to the repeal taking effect. [See lawsuit here]

CMR is an independent, non-partisan public policy organization that concentrates on military issues. CMR’s president, Elaine Donnelly, has done extensive reporting on and analysis of the 1993 law regarding homosexuals in the military, and the consequences of repealing that law.

Plaintiffs first submitted their FOIA requests on August 31, 2011 requesting all records, documents and e-mails concerning the repeal of “Don’t Ask, Don’t Tell” shared among the military Chiefs of Staff, various combatant commanders, and political appointees at the Pentagon and White House. To date, the Department of the Navy has failed to provide any of the requested documents.

Richard Thompson, the Law Center’s President and Chief Counsel, commented, “ Ever since the beginning of the Continental Army of 1775, homosexuality in the military has been prohibited. President Obama changed all that at the expense of our future national security merely to curry favor with his radical homosexual supporters, and Congress went along with him. The purpose of our Armed Forces is to win on the field of battle. This new law will eventually have a devastating impact on unit cohesion and the fighting effectiveness of our combat branches. That’s why we must undo this ill conceived law, and the first step is to discover what went on behind the scenes.”

Contrary to media headlines based on selective misleading leaks about the survey, the actual survey numbers show that nearly 60% of those in the Marine and Army combat units, and among Marine combat arms the number was 67%, thought repealing the DADT law would harm their unit’s ability to fight on the battlefield.

Concerns of Senior Military Leaders Disregarded

During 2010 hearings prior to the rushed lame-duck vote for repeal, both the Commandant of the Marine Corps, General James T. Conway, and the incoming Commandant, General James Amos, informed the Senate Armed Services Committee that their best military advice was to keep the ban in place. Army Chief of Staff General George W. Casey told the Senate Committee that he had serious concerns about the impact of the repeal on a force engaged in two wars.

However, Secretary of Defense Gates and Admiral Mullen, Chairman of the Joint Chiefs of Staff, muzzled other combat commanders from publicly expressing their opinion opposing repeal of the ban. Three-star General Benjamin Mixon, Commander of the U.S. Army Pacific Command, was publicly reprimanded by both Gates and Mullen for publicly expressing his objection to repeal.

To overcome these constraints on active duty senior officers to honestly express their opinion, 1,167 retired flag and general officers, 51 of them former four stars, signed an open letter to President Obama and Congress expressing great concern about the impact that a repeal would have on morale, discipline, unit cohesion and overall military readiness.

An Anti-Christian Policy

Despite the fact that an overwhelming majority of America’s Armed Forces are Christian, the Pentagon brushed aside the religious and moral objections to homosexuality by service members. The Department of Defense recommended elimination of longstanding military laws prohibiting consensual sodomy and adultery to go along with repeal of the “Don’t Ask, Don’t Tell” law. Moreover, recognizing that a large number of military chaplains believe that homosexuality is a sin and are required by God to condemn it as such, the Pentagon claimed that their objections, based upon deeply held religious beliefs, could be overcome through education and training. Ongoing controversies about the Defense Department’s attempts to circumvent the Defense of Marriage Act by authorizing same-sex “ceremonies,” which are simulated marriages on military bases, remain unresolved. Documents obtained by this FOIA lawsuit will improve public understanding of what happened during the lame-duck Congress in 2010, and what must be done to repair the damage.

President Obama and DOMA: Why Obama’s Position is Unconstitutional

The Justice Department announced last month that it would no longer defend the federal Defense of Marriage Act (DOMA) because the president and Attorney General Eric Holder now believe the law is unconstitutional.
“After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act…as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment,” Holder wrote in a letter to House Speaker John Boehner (R-Ohio) on February 23. White House Press Secretary Jay Carney said Obama believes DOMA is “unnecessary and unfair.”

But as CNSNews.com reported, critics of Obama’s decision said the president of the United States, who is sworn to faithfully execute the law, doesn’t get to pick and choose which laws to defend.

Three things should be noted about the President’s justification for considering DOMA unconstitutional.

First, the Fifth Amendment has no “equal under the law” clause, but the Fourteenth Amendment does.

Second, he claims implies state laws made after the passage of DOMA effectual negate it as law rather than prior law (DOMA) negating laws of states. On the face of it, the President’s action seems legitimate because federal law is supposed to conform to the limits of the Constitution, which leaves states their 10th Amendment right to determine on matters not addressed by the Supreme Law. Most marriage issues do apply here. But, again, the justification is based on the Fifth Amendment or maybe the Fourteenth.

Third, however, is the fact that marriage comes under the rubric of human sexual behavior. Men and women enter into marriage covenants long before the Constitution existed. It is a moral act of agreement in which men with women contract to much more than sexual activity, but the basis of the covenant relationship is nevertheless sexual.

As the basis of the Constitutional compact is, so is the basis of marriage. Natural law may be defined as what is self-evidently true to human nature on the basis of reason and revealed law. Critics may disagree with the last two words, but the founders who authored and accepted by vote America’s legal definition of nationhood would agree. Be that as it may, it extremely difficult to reason from human nature as it exists to acceptance of homosexual behavior or marriage of homosexuals as lawful behavior. Some medical scientists have pointed the biological and medical difficulties with it. Simply put, sex between males and females is obvious natural behavior with the benefit of keeping the human race from extinction–even atheistic evolutionists would have to agree. Homosexual behavior is at best an aberration of natural human behavior.

“Equality under the law clause of the 14th Amendment” does not provide protection for aberrant behaviors. It is supposed to guarantee the same protections against discrimination based on natural characteristics like skin color, sex, nationality, and the like. Those characteristics are inherent to human nature. It is supposed to guarantee that common laws are equally applied to all citizens, and in breaking those laws, the same equality is to be applied. That is except for the few exempted from those laws like foreign ambassadors, heads of state, Presidents, and some times the rich.

Let’s not forget, the gay community possess an average income significantly above average John and Jane American.

Even with all of their considerable buying power, the Democratic Party President cannot make the unnatural natural and unconstitutional constitutional.

DOMA Decision: Obama’s Constitutional Quandary

By Cameron Smith

On February 23, President Obama, in consultation with Attorney General Eric Holder, determined that the Justice Department would no longer defend Section 3 of the Defense of Marriage Act (DOMA) which defines marriage as only between a man and a woman.

The DOMA decision has unleashed a seemingly endless cavalcade of commentary regarding the constitutionality of DOMA and the merits of the traditional definition of marriage. Once again, the culture wars seem to be back in full swing as part of American politics.

Unfortunately, the most concerning aspect of the President’s decision has been conspicuously absent from the public debate. Rather than providing clarity on the executive branch’s perspective on the constitutionality of DOMA, the President has muddied the waters and acted in a manner offensive to any reasonable interpretation of the Constitution.

The President derives executive authority from Article II of the U.S. Constitution and is required to “take care that the laws [of the United States] be faithfully executed.” Article I clearly outlines that “[a]ll legislative [p]owers…shall be vested in [the] Congress of the United States….” Powers of the judicial branch are found in Article III and further clarified by Marbury v. Madison, 5 U.S.137 (1803) which established the power of the Court to review the constitutionality of laws. These clearly defined functions provide a unique separation of powers that has served our country well for over 200 hundred years.

On November 2, 1994, Assistant Attorney General Walter Dellinger issued a memorandum entitled “Presidential Authority to Decline to Execute Unconstitutional Statutes” (Dellinger Memorandum). Some have suggested the Dellinger Memorandum should be instructive when considering the President’s recent actions regarding DOMA.

The Dellinger Memorandum clearly and effectively articulates that the President has ample authority to decline enforcement of legislation that encroaches on the constitutional charge of the executive branch. A number of cases including Myers v. United States, 272 U.S. 52 (1926), INS v. Chadha, 462 U.S. 919 (1983), and United States v. Lovett, 328 U.S. 303 (1946) convincingly reinforce that assertion.

Unfortunately, the Dellinger Memorandum does not effectively speak to the President’s decision on DOMA. At no point has the President or the Attorney General argued that DOMA encroaches on the President’s Article II powers. Rather, the President has made a political decision that DOMA is unconstitutional according to his interpretation of the Fourteenth Amendment which has been interpreted to apply to the federal government.

To make matters more confusing, President Obama has informed the Attorney General that the executive branch will continue to enforce the law even though it will not defend it in court. Essentially, this means that DOMA will be considered law but anyone challenging the constitutionality of DOMA in court will not find the U.S. Department of Justice opposing them.

This decision begs the question why the President who has sworn to “preserve, protect and defend the Constitution” would continue to enforce that which he believes to be unconstitutional.

By declining to defend DOMA while continuing to “enforce” it, the President is trying to have his cake and eat it, too. The President is attempting to heavily prejudice the judicial branch’s constitutional disposition of DOMA without declaring the law unconstitutional from the White House.

If the President has the power to unilaterally declare a statute unconstitutional, then the office wields even more power than previously recognized, subject to the volatility of the election cycle. That power would radically shift the modern understanding of constitutional interpretation which has generally deferred to the Supreme Court as the arbiter of constitutionality in most cases. The President also recognizes that such a shift would mean many other potentially unconstitutional laws such as the individual mandate in the Patient Protection and Affordable Care Act could be dispatched by subsequent administrations.

In any event, the President’s decision on DOMA rests on shaky constitutional ground regardless of the ultimate constitutionality of DOMA itself. If President Obama finds DOMA unconstitutional, then he is failing to execute his constitutional Oath of Office to “preserve, protect and defend the Constitution of the United States.” On the other hand, if he continues to enforce the law, thereby supporting its constitutionality, he must also defend it to ensure that the law is faithfully executed.

While the President may have shrewdly made the most politically expedient decision, the responsibility to uphold the Constitution supercedes politics. President Obama should be called to account by Democrats and Republicans alike, regardless of their views on DOMA.


Cameron Smith is General Counsel and Legislative Liaison for the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.

House of Representatives Will Defend Marriage Bill Abandoned by Obama

By Susan Jones

The U.S. House of Representatives says it will make sure the constitutionality of the Defense of Marriage Act is decided by the courts – not by the president.

In a statement on Wednesday, House Speaker John Boehner (R-Ohio) said an advisory group of House leaders – including top-ranking Republicans and Democrats – has directed the House General Counsel “to initiate a legal defense” of the federal law, which defines marriage as the union of one man and one woman.

The Bipartisan Leadership Advisory Group — a five-member panel consisting of the speaker, majority leader, majority whip, minority leader and minority whip — has the authority to instruct the General Counsel to take legal action on behalf of the House of Representatives.

Rep. Steve King (R-Iowa) applauded the decision to involve the House in pending court cases challenging DOMA.

“President Obama’s decision to abdicate his executive branch responsibility to defend DOMA is a constitutional outrage,” King said. “President Obama’s decision to abandon the law is yet another example of his willingness to politicize the Department of Justice on behalf of favored interest groups.”

King also noted that the House will now incur legal expenses stemming from its defense of the law. Therefore, he said, “I intend to offer an amendment that will defund the Department of Justice by a comparable amount. The DOJ should not receive funding for work that it is refusing to do.”

The Justice Department announced last month that it would no longer defend the federal Defense of Marriage Act (DOMA) because the president and Attorney General Eric Holder now believe the law is unconstitutional.

“After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act…as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment,” Holder wrote in a letter to House Speaker John Boehner (R-Ohio) on February 23.

White House Press Secretary Jay Carney said Obama believes DOMA is “unnecessary and unfair.”

But as CNSNews.com reported, critics of Obama’s decision said the president of the United States, who is sworn to faithfully execute the law, doesn’t get to pick and choose which laws to defend.

First published by CNS News on March 10, 2011.

Culture War Reignited!

With the nation’s attention riveted on unfolding drama over healthcare reform, two issues of tremendous concern to millions of Americans have re-emerged: same-sex “marriage” and religious liberty. As is almost always the case, the Left is re-igniting the culture war by attempting to impose its values on the rest of society through the most undemocratic means possible – the courts.

There are several lawsuits pending in federal court seeking to strike down the 1996 Defense of Marriage Act (DOMA). In legal briefs filed today, the Administration begrudgingly acknowledged that it was obligated to defend federal laws, including DOMA, but it is doing so in this case only half-heartedly. With a wink and a nod to sympathetic judicial activists, Justice Department attorneys told the court, “The administration believes the Defense of Marriage Act is discriminatory and should be repealed.”

Obama’s Administration is begging the court to strike down the only federal law that protects the citizens of 30 states who have voted to protect the traditional meaning of marriage. The media told us that this would be a new era of “hope and change.” The nation would be united, political divides would be bridged, old wounds would be healed. The culture wars would be over. Instead, the radical Left insists on redefining marriage and is attempting to send Christians to jail for praying. That’s certainly change, but not much hope for the millions of Americans who cherish the values of faith, family and freedom.

Source: American Values/LFF.