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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 ā€” concerning U.S. Ninth Circuit Chief Judge Alex Kozinski’s order to give court employee Karen Golinski benefits for her same-sex spouse ā€” 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 DOMAā€™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 lawā€™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 ā€” even one as harmful to married same-sex couples as DOMA ā€” 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 representingĀ 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;Ā Monica Alcota and Cristina Ojeda are scheduled for a March 22 hearing in New York; andĀ Henry Velandia and Josh Vandiver scheduled for a May 6 hearing in Newark, N.J.Ā 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.Ā 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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The White House

Karine Jean-Pierre becomes Biden’s fourth openly LGBTQ senior adviser

Press secretary’s promotion was reported on Monday

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White House Press Secretary Karine Jean-Pierre (Washington Blade photo by Christopher Kane)

Following White House Press Secretary Karine Jean-Pierre’s promotion to a top role on Monday, four of the 10 officials serving as senior advisers to President Joe Biden are openly LGBTQ.

The other LGBTQ members of the president’s innermost circle are White House Communications Director Ben LaBolt, senior adviser to first lady Jill Biden Anthony Bernal, and White House Director of Political Strategy and Outreach Emmy Ruiz.

Jean-Pierre became the first Black and the first LGBTQ White House press secretary in May 2022. She spoke with the Washington Blade for an exclusive interview last spring, shortly before the two-year anniversary of her appointment to that position.

“Jill and I have known and respected Karine a long time and she will be a strong voice speaking for me and this Administration,” Biden said in 2022 when announcing her as press secretary.

Breaking the news of Jean-Pierre’s promotion on Monday, ABC noted the power and influence of the White House communications and press office, given that LaBolt was appointed in August to succeed Anita Dunn when she left her role as senior adviser to the president.

As press secretary, Jean-Pierre has consistently advocated for the LGBTQ community ā€” pushing back forcefully on anti-LGBTQ legislation and reaffirming the president and vice president’s commitments to expanding rights and protections.

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U.S. Supreme Court

Supreme Court begins fall term with major gender affirming care case on the docket

Justices rule against Biden admin over emergency abortion question

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The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo Credit: Fred Schilling, The Supreme Court of the U.S.)

The U.S. Supreme Court’s fall term began on Monday with major cases on the docket including U.S. v Skrmetti, which could decide the fate of 24 state laws banning the use of puberty blockers and hormone treatments for transgender minors.

First, however, the justices dealt another blow to the Biden-Harris administration and reproductive rights advocates by leaving in place a lower court order that blocked efforts by the federal government to allow hospitals to terminate pregnancies in medical emergencies.

The U.S. Department of Health and Human Services had issued a guidance instructing healthcare providers to offer abortions in such circumstances, per the federal Emergency Medical Treatment and Labor Act, which kicked off litigation over whether the law overrides state abortion restrictions.

The U.S. Court of appeals for the 5th Circuit had upheld a decision blocking the federal government from enforcing the law via the HHS guidance, and the U.S. Department of Justice subsequently asked the Supreme Court to intervene.

The justices also declined to hear a free speech case in which parents challenged a DOJ memo instructing officials to look into threats against public school officials, which sparked false claims that parents were being labeled “domestic terrorists” for raising objections at school board meetings over, especially, COVID policies and curricula and educational materials addressing matters of race, sexuality, and gender.

Looking to the cases ahead, U.S. v. Skrmetti is “obviously the blockbuster case of the term,” a Supreme Court practitioner and lecturer at the Harvard law school litigation clinic told NPR.

The attorney, Deepak Gupta, said the litigation “presents fundamental questions about the scope of state power to regulate medical care for minors, and the rights of parents to make medical decisions for your children.”

The ACLU, which represents parties in the case, argues that Tennessee’s gender affirming care ban violates the Equal Protection Clause of the 14th Amendment by allowing puberty blockers and hormone treatments for cisgender patients younger than 18 while prohibiting these interventions for their transgender counterparts.

The organization notes that “leading medical experts and organizations ā€” such as the American Medical Association, the American Psychiatric Association, and the American Academy of Pediatrics ā€” oppose these restrictions, which have already forced thousands of families across the country to travel to maintain access to medical care or watch their child suffer without it.”

When passing their bans on gender affirming care, conservative states have cited the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which overturned constitutional protections for abortion that were in place since Roe v. Wade was decided in 1973.

The ACLU notes “U.S. v. Skrmetti will be a major test of how far the court is willing to stretch Dobbs to allow states to ban other health care” including other types of reproductive care like IVF and birth control.

Also on the docket in the months ahead are cases that will decide core questions about the government’s ability to regulate “ghost guns,” firearms that are made with build-it-yourself kits available online, and the constitutionality of a Texas law requiring age verification to access pornography.

The latter case drew opposition from liberal and conservative groups that argue it will have a chilling effect on adults who, as NPR wrote, “would realistically fear extortion, identity theft and even tracking of their habits by the government and others.”

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National

Lesbian software developer seeks to preserve lost LGBTQ history

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ā€˜There's so much history, and we have to transfer it to the digital,ā€™ says Kristen Gwinn-Becker.

Up until the early 2010s, if you searched ā€œBabe Ruthā€ in the Baseball Hall of Fame, nothing would pop up. To find information on the greatest baseball player of all time, you would have to search ā€œRuth, George Herman.ā€ 

That is the way online archival systems were set up and there was a clear problem with it. Kristen Gwinn-Becker was uniquely able to solve it. ā€œI’m a super tech geek, history geek,ā€ she says, ā€œI love any opportunity to create this aha moment with people through history.ā€ 

Gwinn-Becker is the founder and CEO of HistoryIT, a company that helps organizations create digital archives that are genuinely accessible. ā€œI believe history is incredibly important, but I also think it’s in danger,ā€ she says. ā€œLess than 2% of our historical materials are digital and even less of that is truly accessible.ā€

Gwinn-Beckerā€™s love for history is personal. As a lesbian, growing up, she sought out evidence of herself across time. ā€œI was interested in stories, interested in people whose lives mirrored mine to help me understand who I was.ā€ 

ā€œ[My identity] influences my love of history and my strong belief in history is important,ā€ she says.

Despite always loving history, Gwinn-Becker found herself living and working in San Francisco during the early dot com boom and bust in the ā€˜90s. ā€œIt was an exciting time,ā€ she recounts, ā€œif you were intellectually curious, you could just jump right in.ā€

Being there was almost happenstance, Gwinn-Becker explained: ā€œI was 20 years old and wanted to live in San Francisco.ā€ Quickly, she fell in love with ā€œall of the incredible new tools.ā€ She was working with non-profits that encouraged her to take classes and apply the new skills. ā€œI was really into software, web, and database development.ā€ 

But history eventually pulled her back. ā€œTech was fun, but I didn’t want to be a developer,ā€ she says. Something was missing. When the opportunity to get a Ph.D. in history from George Washington University presented itself, ā€œI got to work on the Eleanor Roosevelt papers, who I was and remain quite passionate about.ā€ 

Gwinn-Beckerā€™s research on Eleanor Roosevelt planted the seeds of digital preservation. ā€œEleanor Roosevelt doesn’t have a single archive. FDR has lots but the first ladies donā€™t,ā€ she says. Gwinn-Becker wondered what else was missing from the archive ā€” and what would be missing from the archive if we didnā€™t start preserving it now.

Those questions eventually led Gwinn-Becker to found HistoryIT in 2011. Since then, the company has created digital archives for organizations ranging from museums and universities to sororities, fraternities, and community organizations.

This process is not easy. ā€œDigital preservation is more than scanning,ā€ says Gwinn-Becker. ā€œMost commercial scannersā€™ intent is to create a digital copy, not an exact replica.ā€ 

To digitally preserve something, Gwinn-Beckerā€™s team must take a photo with overhead cameras. ā€œThere is an international standard,ā€ she says, ā€œyou create an archival TIFF.ā€ 

ā€œItā€™s the biggest possible file we can create now. Thatā€™s how you future-proof.ā€

Despite the common belief that the internet is forever, JPEGs saved to social media or websites are a poor archive. ā€œItā€™s more expensive for us to do projects in the 2000 to 2016 period than to do 19th-century projects,ā€ explains Gwinn-Becker, since finding adequate files for preservation can be tricky. ā€œThe images themselves are deteriorated because they’re compressed so much,ā€ she says.

Her clients are finding that having a strong digital archive is useful outside of the noble goal of protecting history. ā€œIt’s a unique trove of content,ā€ says Gwinn-Becker. One client saw a 790% increase in donations after incorporating the digital archive into fundraising efforts. ā€œItā€™s important to have content quickly and easily,ā€ says Gwinn-Becker, whose team also works with clients on digital strategy for their archive.

One of Gwinn-Beckerā€™s favorite parts of her job is finding what she calls ā€œhidden histories.ā€

ā€œWe [LGBTQ people] are represented everywhere. We’re represented in sports, in religious history, in every kind of movement, not only our movement. I’m passionate about bringing those stories out.ā€ 

Sometimes queer stories are found in unexpected places, says Gwinn-Becker. ā€œWe work with sororities and fraternities. There are a hell of a lot of our stories there.ā€

Part of digital preservation is also making sure that history being created in the moment is not lost to future generations. HistoryIT works with NFL teams, for example. One of their clients is the Panthers, who hired Justine Lindsay, the first transgender cheerleader in the NFL. Gwinn-Becker was excited to be able to preserve information about Lindsay in the digital record. ā€œItā€™s making history in the process of preserving it,ā€ says Gwinn-Becker.

Preserving queer history, either through ā€œhidden historiesā€ or LGBTQ-specific archives, is vital says Gwinn-Becker. ā€œThink about whose history gets marginalized, whose history gets moved to the sidelines, whose history gets just erased,ā€ she prompts. ā€œIn a time of fake news, we need to point to evidence in the past. Queer people have existed since there were humans, but their stories are hidden,ā€ Gwinn-Becker says.

Meanwhile, Gwinn-Becker accidentally finds herself as part of queer history too. Listed as one of Inc. Magazineā€™s Top 250 Female Founders of 2024, she is surrounded by names like Christina Aguilera, Selena Gomez, and Natalie Portman. 

One name stuck out. ā€œNever in my life did I think I’d be on the same list ā€“ other than the obvious one ā€“ with Billie Jean King. That’s pretty exciting,ā€ she said. 

But she canā€™t focus on the win for too long. ā€œWhen I go to sleep at night, I think ā€˜there’s so much history, and we have to transfer it to the digital,ā€™ā€ she says, ā€œWe have a very small period in which to do that in a meaningful way.ā€

(This story is part of the Digital Equity Local Voices Fellowship lab through News is Out. The lab initiative is made possible with support from Comcast NBCUniversal.)

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