The Constitutional Question

White House Domestic Policy Adviser Melody Barnes says the president thinks the law is discriminatory, but declines telling LGBT media whether he views the law as unconstitutional

At the White House LGBT media briefing on Thursday, July 1, White House Domestic Policy Adviser Melody Barnes took questions on a range of issues. One issue discussed throughout the session related to the Defense of Marriage Act (DOMA) and the government’s defense of the 1996 law in court.

White House Domestic Policy Adviser Melody Barnes
White House Domestic Policy Adviser Melody Barnes
(Photo courtesy of the White House)

The journalists at the meeting raised the issue at several points throughout the briefing, finally zeroing in on a fairly nuanced, but important, question of whether the administration regards the law as merely discriminatory, or whether it finds it to be unconstitutional.

Barnes, a University of Michigan-trained lawyer who served as the late Sen. Edward Kennedy’s (D-Mass.) chief counsel for nearly a decade, repeatedly stated that President Obama views DOMA – and the ”Don’t Ask, Don’t Tell” policy – as discriminatory. The former defines marriage for federal purposes as exclusively between one man and one woman, while the latter bars gays and lesbians from serving openly in the military.

But while Barnes pointed to Obama’s view of the laws as discriminatory, she was unwilling to say that the administration or president view either law as unconstitutional.

At one point in the hour-long briefing, Barnes told the nine journalists, ”[T]he president hasn’t made an argument around the constitutionality [of DOMA]. He’s said it’s discriminatory.”

She did say that she would get back with an answer regarding constitutionality.

Below is a collection of the relevant portions of the briefing.

The Advocate‘s Kerry Eleveld raised the topic of DOMA, asking about the administration’s efforts at expanding same-sex partner benefits while not embracing full marriage equality.

KERRY ELEVELD: When is he going to move past these fixes to embrace full equality?

MELODY BARNES: The president has consistently called for the repeal of DOMA – one, because he thinks it is discriminatory, and, two, because he thinks it is necessary as we try and make sure that couples – same-sex couples – have access to the full range of benefits, which is why he has called for activity on the federal level in the federal government and asked his cabinet heads and agency heads to scrub their authorities to see how far they can go and to go as far as they can.

So, I think that between the repeal of DOMA and asking the feds, and within his executive, to move forward and to make sure that benefits are available that that’s the course that he’s identified. That’s the course that he’s supported.

Barnes added that the sponsor of the Respect for Marriage Act, Rep. Jerrold Nadler (D-N.Y.), is even of the view that ”there’s more education needed to move this forward” and did not refute a comment that Obama continues to support civil unions and not marriage equality. Later, Barnes responded to Metro Weekly‘s question specifically about the administration’s communications regarding its decisions to defend DOMA and DADT.

BARNES: Well, I think it’s human, when there’s a filing, it kind of scrapes at the scab one more time, and it reminds people of the posture of the government one more time, but that doesn’t change the rationale behind what we have to do. … [W]e can’t pick and choose the laws that we defend. There may be a small – a fraction of a fraction of a percentage of examples where the government has not defended a law that’s on the books, but we believe – the president believes – that given his office he has to defend the laws.

That doesn’t mean we don’t think DOMA is discriminatory, but, at the same time, we have an obligation to defend the laws of the land. Once we start to pick and choose, we’ll end up in a situation, where at some future point with another administration … [they would say,] ‘We have the right to pick and choose.”’

Hate crimes, I think is a key example, where it’s being attacked and we’re defending it. Another administration, if they didn’t take seriously their obligation under the law to defend the law of the land, would make another choice there.

Later in the briefing, Keen News Service’s Lisa Keen returned to the topic.

LISA KEEN: When a law is unconstitutional, I think on its face, I don’t understand why the administration has to be vigorously defending it.

BARNES: Because right now it’s the law of the land. At the same time, that’s why the president has called for the repeal of DOMA and has been working towards the repeal of ”Don’t Ask, Don’t Tell,” and has been very clear about saying, ‘I believe that’ – in both instances – ‘these laws are discriminatory.’ He has not shied away from using the bully pulpit to convey his thoughts on these laws….

He believes DOMA is discriminatory, and the Justice Department has included that language in its more recent briefs, at the same time, also making clear, publicly, that we believe it is our obligation to defend the law if there is a rational basis – if Congress had a rational basis for passing the law.

KEEN: Maybe you’ve hit the nail on the head: He believes it discriminatory. Does he believe it’s unconstitutional?

BARNES: He hasn’t made an argument – the president hasn’t made an argument around the constitutionality. He’s said it’s discriminatory. I just wanted to be clear about that so we’re being consistent.

JOE SUDBAY [OF AMERICABLOG]: [Obama's] a constitutional scholar. He must have an opinion on it…. Does this administration – you consider DOMA and ”Don’t Ask, Don’t Tell” discriminatory – do you think they’re constitutional?

BARNES: I would need to get back to you. The Justice Department has been specifically working on those issues as they’ve been working through the filings. I’m not going to answer that question without going back to look at what we have said, specifically, on the record because that would be a reflection – the accurate reflection of where the administration is.

CHRIS GEIDNER: You will get back to us on that?

BARNES: Sure.

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