Ending the Defense of Marriage Act

A lawsuit was filed last week here in Massachusetts alleging that the 1996 Federal Defense of Marriage Act  is unconstitutional and discriminatory. 

According to the story in the Boston Globe on March 3

The suit, which legal specialists described as the first serious challenge to the federal law signed by President Bill Clinton, contends that the statute has deprived the plaintiffs of benefits enjoyed by heterosexual married couples.

Those benefits include health insurance for spouses of federal employees, tax deductions for couples who jointly file federal income tax returns, and the ability to use a spouse’s last name on a passport.

I think it is about time someone litigated the issue.  I have friends who end up going though lots of gyrations this time of year filing individual federal returns and joint state ones.  I know people who can’t get health insurance throught their federally employed spouse.  And I think it is criminal that people like Massachusetts Congressman Studds surviving spouse can’t get his death benefits.

Those who oppose same sex marriage worry that the end of the Defense of Marriage Act would mean that the individual states would have to approve of gay marriage.  Mary Bonauto, the attorney from GLAD who brought the lawsuit responds

If the plaintiffs win, she said, it would not extend same-sex marriage beyond Massachusetts and Connecticut, the two states where it is legal.

But it would dismantle a federal statute that affects more than 1,000 marriage-related benefits, and it would be a huge victory on symbolic and practical levels for supporters of same-sex marriage, according to legal specialists.

The plaintiffs and GLAD have a long road ahead of them and I, for one, wish them well and I’m proud that Massachusetts citizens are, once again, leading the way to equality.

Secret Memos

The George W. administration was fond of secrecy:  secret renditions to foreign countries, secrect meetings to develop an energy plan, and secret legal opinions were among the secrets.  We’ve known about the existance of the John Yoo memos to justify just about everything for a while now, but the content is now public and he is either a very bad lawyer or he wanted to please his masters at Justice and in the White House so much he would write anything thing.

John Dean has a long essay  in FindLawanalyzing the Yoo memos and their effect of the Office of Legal Counsel.

In reading these newly-released memos, along with the previously-released documents relating to the use of torture as an interrogation technique, it is pretty clear who was the bad apple at OLC, it was the lead attorney in pursuing these extreme and baseless OLC positions law professor John Yoo. It is likely that Yoo did the drafting, and then either he or his boss, the Assistant Attorney General in charge of OLC, Jay Bybee, signed off on the memos. Bybee now sits on the U.S. Court of Appeals for the Ninth Circuit.

Dean also discusses the quality of Yoo’s legal work

Because Yoo became the leading legal adviser to the Bush White House after 9/11, many have looked closely at his scholarship, and more will likely scrutinize Yoo’s work with this new release of his OLC work product. When writing Broken Government, I paused to look at Yoo’s work and frankly was shocked to find such an intelligent person engaging in blatant intellectual dishonesty. It was not merely occasional excesses. Rather, when I examined his book War By Other Means, I found page after page of his material to be filled with deliberate distortions. In my book, I set forth example after example of his technique, and in doing so, I did not even scratch the surface of his deceitful methods of advocacy.

Also, I found that I was not alone in questioning Yoo’s intellectual integrity. For example, Georgetown law professor David Luban, when reviewing Yoo’s book War By Other Means for the New York Review of Books(Mar. 15, 2007), reported that “Yoo argues forcefully and intelligently, but not always honestly. Half-truths, straw men, double standards, selective quotations, significant omissions, and caricatures of his opponents’ positions – all are characteristic of War By Others Means.” [Emphasis added.] Unfortunately, this is how Yoo wrote legal opinions for OLC as well, which was very much contrary to the prior standards of that office.

So, are we going to prosecute Yoo and Bybee?  Maybe they really didn’t have any evil intent, but they were interested in justifying the actions of those they worked for and those actions lead to violations of little things like the Geneva Conventions and the Convention Against Torture.

Seven newly released memos  from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

That is Marjorie Cohn’s take on Alternet.  She concludes

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.

President Obama is probably smart to not lead the charge, but to let Congress and the natural course of events to dictate prosecution.  He and Eric Holder should just continue to mine the archives and release information.  I have to believe that prosecutions will happen in the natural course of events. 

Meanwhile over at the blog RedState, the most recent post is Warner Todd Hudson’s Fist [sic] Kill the Lawyers  in which he rants about a Boston Globe story about lawyers getting laid off.  (Why anyone would rejoice at anyone being laid off, I’m not sure but that is for a different discussion.)  Hudson concludes

So, I rejoice at the troubles seen by Boston’s legal eagles and I hope their discomfiture is felt in every city of the land. I further hope that many of them find useful work in some furniture store or perhaps a nice Taco Bell somewhere. At least they’d finally be serving the public instead of milking them dry.

Anyway, let’s not kill all the lawyers in literal fashion. But let’s encourage them to seek a new profession, shall we?

Can we start with Yoo and Bybee?