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Can Obama stop enforcing DOMA?

Experts divided as legal challenges loom

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President Obama (Blade photo by Michael Key)

The announcement from President Obama last week that he believes Section 3 of the Defense of Marriage Act is unconstitutional and that he will no longer defend the law in court is raising questions about whether he can further help the LGBT community by discontinuing enforcement of the law.

Dan Pinello, who’s gay and a government professor at the City University of New York, said he believes Obama has the authority to stop enforcing Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages, now that he has deemed the statute unconstitutional.

“If an order came down from the White House to start treating married same-sex couples like married opposite-sex couples, I think that would be honored in terms of bureaucrats sitting up and doing what he says,” Pinello said. “A president can seek not to enforce a statute if he believes, legally and otherwise, it’s unconstitutional.”

In the past, presidents have declined to enforce laws that they believe are unconstitutional, but such situations are rare. President Woodrow Wilson ignored a statute that conditioned removal of postmasters on Senate approval. In 1926, the Supreme Court struck down the the law as unconstitutional without making any suggestion that Wilson overstepped his boundaries by not enforcing the statute.

In 1994, then-U.S. Assistant Attorney General Walter Dellinger wrote a memorandum to then-White House Counsel Abner Mikva asserting the president “may appropriately decline to enforce a statute that he views as unconstitutional.”

“As a general matter, if the President believes that the [Supreme] Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue,” Dellinger writes. “If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.”

But the memorandum examines whether a president can decline to enforce a statute in terms of whether the president has authority not to uphold a law recently approved by Congress. Dellinger states that if Congress is making progress toward passing a law that the president believes is unconstitutional, the White House should “promptly identify unconstitutional provisions and communicate its concerns to Congress.”

Such a situation would be different from what happened with DOMA, when the president determined the statute was unconstitutional nearly 15 years after a Republican Congress passed the bill and then-President Clinton signed it into law.

Jon Davidson, legal director for Lambda Legal, said there is “significant dispute” over whether a president can unilaterally decline to enforce a statute.

“When a president simply refuses to enforce the law, it’s not always clear that there is anyone who would have the legal ability to sue to require him to do so,” Davidson said. “This ability to exercise unilateral authority is troubling to many scholars.”

Still, Davidson noted that precedent exists for presidents to decline to enforce particular laws. For 25 years following its enactment in 1968, he said, every president refused to enforce a law seeking to make the Miranda case inapplicable to federal prosecutions until the courts struck down the law. Similarly, Davidson said numerous presidents refused to abide by laws allowing for legislative vetoes of presidential action, such as the 1973 War Powers Resolution.

For its part, the Obama administration seems intent on maintaining enforcement of DOMA even though the president has deemed it unconstitutional. In the case of Golinski v. U.S. Office of Personnel Management — concerning U.S. Ninth Circuit Chief Judge Alex Kozinski’s order to give court employee Karen Golinski benefits for her same-sex spouse — the Obama administration reiterates that it plans to continue enforcement of DOMA.

Kozinski ordered the U.S. government to answer questions about its continued refusal to offer Golinski federal benefits in light of its decision that DOMA is unconstitutional. On Monday, the Justice Department responded to Kozinski by saying that Obama is obligated to continue to enforce the law until either Congress repeals the statute or the courts strike it down.

“The President has determined that Executive agencies will continue to enforce Section 3 of DOMA, a course of action that accords appropriate deference to the Congress that enacted DOMA and allows the judiciary to be the final arbiter of DOMA’s constitutionality, as stated by the Attorney General,” the Justice Department states. “Moreover, as discussed, the Executive Branch has fulfilled its statutory obligation to notify Congress of the decision not to defend the statute and is committed to urging the courts to provide Congress with a full and fair opportunity to participate in the litigation of DOMA cases.”

Shin Inouye, a White House spokesperson, said Obama plans to continue to enforce DOMA even though he’s decided no longer to enforce the statute in court.

“Consistent with past practice when a president determines and announces publicly that a law is unconstitutional, the president has directed the Department of Justice to cease defending the law in court,” Inouye said. “Until there is a final determination by the courts of the law’s validity or it is repealed by Congress, however, it remains the law of the land and the president will continue to enforce it as such.”

Many legal experts who are LGBT advocates are wary of the prospects of the president declining to enforce a statute — even one as harmful to married same-sex couples as DOMA — simply on the basis that Obama deems the law unconstitutional.

Nan Hunter, a lesbian law professor at Georgetown University, said no one believes more strongly than she that DOMA is unconstitutional, but cautioned against having the president stopping to enforce DOMA because “you have to look beyond your nose when you’re thinking about the ramifications of these sorts of decisions.”

“We do not want to live in a country in which the president can declare statutes to be unconstitutional because he doesn’t like them,” Hunter said. “That’s really not a place where any of us should want to live.”

To support the idea of a president ceasing to enforce a statute because the administration believes it’s unconstitutional, Hunter said she wants to see a guiding set of principles that would allow Obama to stop enforcing the statute while being consistent with the rule of law.

“I think everyone agrees that the criteria would have to be extremely limited so that such a situation would be extremely rare,” Hunter said. “Maybe someone could persuade that this fits into that very limited criteria, but I just haven’t heard any.”

Richard Socarides, president of the media watchdog group Equality Matters, said given the history of DOMA, the Obama administration would be “hard pressed” to decide unilaterally to stop enforcing DOMA.

“I just think it would be disruptive to the normal order of things,” Socarides said. “I’m sure that their lawyers made pretty convincing arguments that the more orderly way to do this was to await a definitive ruling from the court, which should be fairly quickly forthcoming based upon the government’s new position.”

Amid this debate, another LGBT advocate is drawing on the recent change in how the Obama administration is handling DOMA to press the administration to exercise prosecutorial discretion in cases involving bi-national same-sex couples.

Lavi Soloway, an attorney with Masliah & Soloway PC in New York, is representing three married, same-sex bi-national couples in New York, New Jersey and California who are facing deportation proceedings.

Alex Benshimol and Doug Gentry are scheduled for a July 13 hearing in San Francisco; Monica Alcota and Cristina Ojeda are scheduled for a March 22 hearing in New York; and Henry Velandia and Josh Vandiver scheduled for a May 6 hearing in Newark, N.J. Each of the American spouses in these cases has filed green card petitions on behalf of their foreign national partners, although DOMA prevents American nationals from sponsoring their partners.

“We intend to argue as a result of the shifting position of the executive branch with respect to DOMA that it’s appropriate for the immigration judges and also for the attorneys that represent the Department of Homeland Security to exercise what’s called prosecutorial discretion, which simply means exercising more discretion in how to proceed with these cases,” Soloway said.

In the three pending cases, Soloway is asking for judges to consider changes that were made to how the Obama administration is handling DOMA in court and to put off deportation proceedings until another time when different relief of legal options may be available. According to Soloway, if anyone in these cases is deported, they won’t be able to return to the United States for another 10 years, even if DOMA is repealed or overturned sometime before then.

“I’m calling on the Department of Homeland Security … to develop reasonable innovative policy to deal with the particular moment that we’re in,” Soloway said. “We’re just in a very short-term moment where things are in a state of flux. I’m not asking them to stop enforcing any law; this is part of enforcing the law.”

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New York

Gay ICE detainee freed after 150 days in detention

Cayman Islands native taken into custody before green card interview

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Allan Marrero, left, and Matthew Marrero (Photo courtesy of Middle Church)

Following nearly half a year in U.S. Immigration and Customs Enforcement detention, Allan Marrero has been released and is back home with his husband in New York.

Marrero spent 150 days in ICE custody, held in multiple detention centers across the U.S. after missing an immigration court hearing while in a rehabilitation program for alcohol addiction — a circumstance widely considered “good cause” for failing to appear.

The Washington Blade first reported on Marrero’s case in March after the Cayman Islands native was detained by ICE officers during what was supposed to be a routine marriage-based green card interview at 26 Federal Plaza in New York City.

Marrero had been married to his husband, Matthew Marrero, for two years at the time of the interview. But almost immediately, the experience turned hostile.

The Rev. Amanda Hambrick Ashcraft, a minister at Middle Church in Manhattan who accompanied the couple to provide spiritual support, later described the process as “dehumanizing” and “barbaric.”

During the interview, it became clear the couple was facing an uphill battle. At one point, when asked how they met, Matthew Marrero instinctively looked over at his husband and was “snapped at” and told not to look at him. As the interview continued, the outlook only grew more grim.

Unaware that he had a prior removal order tied to the missed court date while he was in rehab, Allan Marrero was detained on the spot.

Over the following months, Allan Marrero was transferred through multiple detention facilities, including centers in Arizona and Texas, the Everglades Detention Facility — also known as “Alligator Alcatraz,” which has been described as having “unsanitary inadequate conditions” — and ultimately a detention center in Mississippi.

While in custody, Allan Marrero was denied access to prescription medication and, according to advocates, was psychologically pressured by ICE agents to self-deport rather than remain detained while his legal case proceeded.

Although a judge later reopened his case and granted bond after Allan Marrero provided proof that he had been in rehab — a valid medical reason for missing his court date — ICE used procedural mechanisms to keep him detained. A separate judge later issued a ruling denying relief, leaving Allan Marrero in custody.

On the outside, Matthew Marrero said his life felt as though it had been put on pause so ICE could meet enforcement quotas.

“[It feels like] somebody came in and kidnapped someone close to you and took away all of your control and power,” Matthew Marrero told the Blade on March 7. “You shouldn’t be able to have this much control over somebody’s life, especially if they are trying to do the right thing … You’re not going after criminals, you’re not going after the worst of the worst. You’re trying to fill a quota.”

Alexandra Rizio, Allan Marrero’s attorney with Make the Road New York, a progressive grassroots immigrant-led organization, told the Blade that “there seems to be an underlying element of cruelty baked into not only this administration, but everything.”

“It didn’t have to go down that way,” Rizio continued. “If someone goes in for a green card interview and their marriage interview, and they learn that they have a removal order, what the USCIS officer could have done is say, ‘Look, you have a removal order in your name. You need to go hire an attorney right away to get this taken care of. I can’t adjudicate your green card…’ And if you hire a lawyer, you know, you might be able to get it straightened out. Of course, that’s not what happened. And so ICE, which was in the building, were called and they did arrest Allan.”

The Marreros are scheduled to hold a press conference on Tuesday at Middle Church, where Allan Marrero will speak publicly for the first time about his detention.

For additional information on the press conference please visit middlechurch.org

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Federal Government

Republicans attach five anti-LGBTQ riders to State Department funding bill

Spending package would restrict Pride flags on federal buildings, trans healthcare, LGBTQ envoys

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(Washington Blade photo by Michael Key)

As Congress finalizes its funding for fiscal year 2027, Republicans are attempting to include five anti-LGBTQ riders in the National Security and Department of State Appropriations Act.

A rider is an unrelated provision tacked onto a bill that must pass — in this instance, the bill provides funding for national security policy and for the State Department.

The riders range from restricting Pride flags in federal buildings to banning transgender healthcare, but all aim to limit the visibility and rights of LGBTQ Americans.

The five riders are:

Section 7067(a) prohibits Pride flags from being flown over federal buildings.

Section 7067(c) restricts the United States’ ability to appoint special envoys, representatives, or coordinators unless expressly authorized by Congress. These roles have historically been used to promote U.S. interests in international forums — including advancing human and LGBTQ and intersex rights and other policy priorities. The change would halt what the Congressional Equality Caucus describes as providing “critical expertise to U.S. foreign policy and leadership abroad.”

Section 7067(d) reinforces multiple anti-equality executive orders signed by President Donald Trump, effectively requiring that foreign assistance funded by the United States comply with those orders. This includes rescinding federal contractor nondiscrimination protections, including for LGBTQ people.

Section 7067(e) prohibits funding for any organization that provides or promotes medically necessary healthcare for trans people or “promotes transgenderism” — effectively banning funds for organizations that recognize trans people exist. This is despite the practice of gender-affirming care being supported by nearly every major medical association.

Section 7067(g) reinforces two global gag rules put forward by the Trump-Vance administration. One is the Trans Global Gag Rule, which prohibits foreign assistance funding for organizations that acknowledge the existence of trans people or advocate for nondiscrimination protections for them, among other activities. The second is the DEI Global Gag Rule, which prohibits foreign assistance funding for organizations that engage in efforts to address the ongoing effects of racism, sexism, and other forms of bigotry outside the United States.

The global gag rule has its roots in anti-abortion policy introduced by President Ronald Reagan in 1984, when the 40th president barred foreign organizations receiving U.S. global health assistance from providing information, referrals, or services for legal abortion, or from advocating for access to abortion services in their own countries. Planned Parenthood notes that the policy also affects programs beyond abortion, including efforts to expand access to contraception, prevent and treat HIV/AIDS, combat malaria, and improve maternal and child health.

If organizations funded by the State Department engage in these activities, they could lose funding.

This anti-LGBTQ push aligns with broader actions from the Trump-Vance administration since the start of Trump’s second term, which have focused on restricting human rights — particularly those of trans Americans.

The House Appropriations Committee is responsible for drafting the appropriations legislation. U.S. Rep. Tom Cole (R-Okla.) serves as chair, with U.S. Rep. Rosa DeLauro (D-Conn.) as ranking member. The committee includes 34 Republicans and 27 Democrats.

For FY27 appropriations, Congress is supposed to pass and have the president sign the funding bills by Sept. 30, 2026.

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Noticias en Español

The university that refuses to let go

Joanna Cifredo is a trans woman participating in University of Puerto Rico strike

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Joanna Cifredo outside the University of Puerto Rico campus in Mayagüez, Puerto Rico. (Washington Blade photo by Ignacio Estrada Cepero)

Over the past days, I have been walking with a question that refuses to leave me. Not the kind of question you answer from a desk or from a distance, but one that grows out of what you witness in real time, at the gates, in the faces of those who remain there without knowing how any of this will end. What is truly happening inside the University of Puerto Rico, and why have so many students decided to risk everything at a moment when they can least afford to lose anything.

I write as someone who lives just steps away from the Río Piedras campus. These days, the silence has replaced the constant movement that once defined this space. The absence is felt in every corner where students used to pass at all hours. Since arriving in Puerto Rico three years ago, I have come to know firsthand stories that rarely make it into reports or official statements. One of the reasons I chose to stay was precisely this, to serve the university community, to help create a space where students could find something as basic as a safe meal at night and, in some way, ease burdens that are often carried in silence.

I have listened, asked questions, and tried to understand without imposing answers. What I have found is not a collective outburst or a generational whim. What exists is a fracture, a deep break between those making decisions and those living with their consequences every single day.

There has been an effort to reduce this strike to an issue of order, scheduling, or academic disruption. Conversations revolve around missed classes, delayed semesters, and students supposedly unaware of the consequences of their actions. What is rarely addressed are the conditions that lead an entire student body to pause its own future to sustain a protest that offers no guarantees.

Because that is the reality. These are students who fully understand what they are risking, and yet they remain. When someone reaches that point, the least they deserve is not judgment, but to be heard.

From the outside, there have also been attempts to discredit what is happening. Familiar narratives are repeated, legitimacy is questioned, and doubt is cast over intentions. It is easier to do that than to acknowledge that this did not begin at the gates, but long before, in decisions made without building trust.

And something must be said clearly. This is not limited to the gates of Río Piedras. What we are witnessing extends across every unit of the University of Puerto Rico system. Mayagüez, Ponce, Arecibo, Bayamón, Cayey, Humacao, Carolina, Aguadilla, Utuado, and the Medical Sciences Campus. This is not an isolated reaction. It is a movement that runs through the entire institution. Río Piedras may be more visible, but it is not alone. What is happening there reflects a broader unrest felt across the system.

Within that context, one demand has grown increasingly present, the call for the resignation of University of Puerto Rico President Zayira Jordán Conde. This is not the voice of a small group. It reflects a deeper level of mistrust that has spread across multiple campuses.

The Puerto Rican Association of University Professors has also made it clear that this is not solely a student issue. There is real concern among faculty, and a shared recognition of the conditions currently shaping the university. When students and professors arrive at the same conclusion, the problem can no longer be minimized.

Meanwhile, the administration continues to speak in the language of dialogue. But dialogue is not a word, it is a practice. And when trust has been broken, it cannot be restored through statements alone, but through decisions that prove a willingness to truly listen.

In the midst of all of this, there are voices that cannot be ignored. Voices grounded not in theory, but in lived experience. One of them is Joanna Cifredo, a student at the Mayagüez campus, a young Puerto Rican trans woman, and someone widely recognized for her advocacy.

I spoke with her in recent days. What follows is her voice, exactly as it is.

How would you describe what is happening inside the University of Puerto Rico right now, beyond what people see from the outside?

Estamos viviendo momentos muy difíciles, en el sentido de que hay mucha incertidumbre y una presión constante por parte de la administración para reabrir el recinto, pero, entre todo el caos e inestabilidad provocado por las decisiones de esta administración, también hemos vivido momentos muy poderosos. Esta lucha ha sacado lo mejor de nuestra comunidad.

Lo vimos en las asambleas y plenos, donde 1,500, 1,700, hasta 1,800 estudiantes llegaron —bajo lluvia, bajo advertencias de inundaciones— y aun así se quedaron, participaron y votaron a favor de una manifestación indefinida hasta que se atiendan nuestros reclamos.

He conocido a tantas personas en los diferentes portones, estudiantes graduados, aletas, estudiantes de intercambio, estudiantes de todo tipo de concentraciones y se unieron para apoyar el movimiento estudiantil. Estudiantes que vienen a los portones después del trabajo o antes de trabajar. Estudiantes que vienen a dejar agua y suministros entre turnos de trabajo. Viejitos que vienen a los portones con desayuno, almuerzo o cena.

Más allá de lo que se ve desde afuera, lo que estamos viviendo es una mezcla de tensión y resistencia, pero también de comunidad, solidaridad y compromiso colectivo.

Much of what is discussed remains at the level of headlines or social media. From your direct experience, what specific decisions or actions from the administration have led to this level of mobilization?

Desde el inicio, la designación de la Dra. Zayira Jordán Conde careció de respaldo dentro de la comunidad universitaria. No contaba con experiencia administrativa en la UPR ni con un conocimiento básico de nuestros procesos, cultura y reglamentos. Por eso, en asamblea, el estudiantado votó para solicitarle a la Junta de Gobierno que no considerara su candidatura, y múltiples organizaciones docentes hicieron lo mismo. Existía un consenso amplio de que no tenía la experiencia necesaria para liderar una institución como la nuestra.

A pesar de ese rechazo claro, la Junta de Gobierno decidió ignorar los reclamos de la comunidad universitaria e imponer su nombramiento.

Una vez en el cargo, su estilo de gobernanza ha sido poco transparente y poco colaborativo. Sin embargo, el detonante principal de la movilización en el Recinto Universitario de Mayagüez fue su decisión de destituir, de manera unilateral y en medio del semestre, a cinco rectores, incluyendo al nuestro, el Dr. Agustín Rullán Toro, para reemplazarlo por un rector interino, el Dr. Miguel Muñoz Muñoz.

Esta acción, tomada de forma abrupta, provocó de inmediato un clima de caos e inestabilidad dentro de la institución. Y deja una pregunta inevitable: ¿no anticipó el impacto de esa decisión, lo que evidenciaría una falta de experiencia? ¿O lo anticipó y aun así decidió proceder? No está claro cuál de las dos es más preocupante.

Además, esta decisión tuvo consecuencias concretas para el estudiantado, incluyendo el retiro de becas educativas para nuevos integrantes del RUM por parte de la Fundación Ceiba, que calificó la movida como “sorprendente” y “preocupante”. Decisiones impulsivas como la que tomó la presidenta ponen en peligro la estabilidad de nuestra institución y la acreditación de la universidad.

As a trans woman within this movement, how does your identity intersect with what is happening, and why does this also shape the future of people like you?

Soy una de varias chicas trans que formamos parte activa de este movimiento estudiantil.

For those outside the UPR who believe this does not affect them, what are the real consequences of this crisis?

La Universidad de Puerto Rico se fundó para servir al pueblo.

It is impossible to overstate the role the University of Puerto Rico and its students have played in shaping the social, cultural, and economic life of this country. Its impact extends into science, medicine, and every profession that has sustained Puerto Rico over time. No other educational institution has contributed more.

After listening to her, one thing becomes undeniable. This is not just another protest, but a generation refusing to let go of what little remains within its reach. And when a generation reaches that point, the issue is no longer the strike, the issue becomes the country itself.

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