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Acting Assistant Attorney General for the Civil Division Stuart F. Delery Speaks at the White House LGBT Conference on Families
Minneapolis ~ Saturday, April 28, 2012

Thank you, Emily, for that warm introduction.  And thanks to Jennifer Chrisler and the rest of the Family Equality Council not just for your partnership in hosting this important event today, but for all the hard work you do every day to ensure that all families are recognized, protected, respected, and celebrated.   It’s a pleasure to join the Family Equality Council, my colleagues from across the Obama Administration, and especially all of the families here today, as we collaborate to address some of the challenges faced by families headed by gay and lesbian parents, or that include LGBT individuals.

 

Were I not here with you this morning, I would be at a similar conference at home with the rest of my family because my partner is one of the organizers.   But I have promised to try to be back in time for our Little League game late this afternoon, and I really hope I make it.   I’m sure that all of the families here can relate.   We are all used to juggling sports and other events on the weekends — although usually not in different cities.

 

As [Emily] mentioned, I am the Acting Assistant Attorney General for the Civil Division, which is the Department of Justice’s largest litigating component.   With over 1000 lawyers and 1400 employees, we are essentially the federal government’s law firm.  Our clients include the President, the Cabinet, federal agencies and Congress, and our docket involves nearly every aspect of what the government does.   In my first six weeks in this job, I have dealt with national security issues, immigration, health care fraud, mortgage and other financial fraud, and claims relating to the damage caused by Hurricane Katrina – to name just a few areas.

 

And though you may not know us by name, you may be familiar with some of the ways this Division, and the rest of the Administration, are working to nurture families of every kind.

 

Over the past three years, the President and federal agencies throughout the government have taken crucial steps to support LGBT individuals and their families.   For example, same-sex partners of federal employees now have access to benefits like sick leave, life insurance, and moving expenses.   And all hospitals that receive federal funds – like Medicare or Medicaid – must allow all patients to receive visits from their families and loved ones, including same-sex partners.   And Customs and Border Patrol recently announced that families in one household – including domestic partners and their children – can make a single, joint declaration when they return from overseas travel.   

 

You will hear more about what other agencies are doing over the course of the day.   But I want to take a few minutes this morning to talk about some things that the Department of Justice is doing that directly affect LGBT families.

 

First, the Department is no longer defending equal protection challenges to Section 3 of the Defense of Marriage Act.   Section 3 defines the terms “marriage” and “spouse” for purposes of federal law to exclude same- sex couples, even if they are legally married under state law.   This means that these couples are not entitled to the more than 1,000 federal benefits, rights and obligations that are given to all other married people.   These range from Social Security benefits to immigration rights to health care coverage for spouses of federal employees—the types of things that really matter in the daily lives of families.  

 

In February of last year, the President and the Attorney General reached two important conclusions.   First, they concluded that laws that make distinctions based on sexual orientation, similar to laws that make distinctions based on gender or race, should get what’s called heightened constitutional scrutiny, meaning a close review.   And second, they concluded that, as applied to same-sex couples who are legally married under state law, Section 3 of DOMA violates the Constitution’s guarantee of equal protection of the laws.   Because they had determined that Section 3 is unconstitutional, the President and the Attorney General directed the Department of Justice to stop defending it in litigation.

 

So what prompted this decision?

 

Two lawsuits were filed in November 2010.   The plaintiffs there—same sex couples legally married by their states who wanted federal benefits for their spouses—brought equal protection challenges in parts of the country where the courts had not yet decided how closely laws that target gay and lesbian people should be scrutinized.  This had not been true in the DOMA cases we had been litigating up to this time.

 

In considering what the answer to that question should be, the President and the Attorney General considered the same factors that Courts do when evaluating whether laws that target a particular group get close constitutional review.   These factors are designed to identify distinctions between people that are generally not appropriate bases for government to consider in making policy.  

 

·          Like the long and deep history of discrimination that gay and lesbian individuals have faced—and continue to face to this day.

·          And the reality that, while sexual orientation is not “visible” exactly, it would be unfair for a law to require LGBT individuals to hide their true selves to avoid discrimination.

·          And the fact that sexual orientation says nothing about an individual’s ability to contribute productively to society.  

 

The President emphasized this last point in the context of the military when he signed the repeal of Don’t Ask, Don’t Tell into law.   He said:   “[V]alor and sacrifice are no more limited by sexual orientation than they are by race or by gender or by religion or by creed . . . .   [A]t every turn, every crossroads in our past, we know gay Americans fought just as hard, gave just as much to protect this nation and the ideals for which it stands.”

 

Considering all these factors, the President and the Attorney General concluded that laws that treat people differently based on their sexual orientation, like laws that make classifications based on gender or race, are inherently suspect—and therefore must meet a higher burden to be found valid.  

 

And, since that time, the Department of Justice has articulated this position in briefs filed across the country.   There is no question that DOMA targets same-sex couples and treats people differently based on their sexual orientation—that it was motivated in significant part by prejudice towards, moral disapproval of, and stereotype-based thinking about, gay and lesbian people and their intimate and family relationships.   Indeed, it is exactly the kind of law that so-called “heightened scrutiny” is designed to address.   To meet this test, a law must not only advance an important state interest but there must also be a sufficiently tight fit between what the law claims to do and what it actually does.  

 

And, as the Department has argued, DOMA’s Section 3 fails on both counts.

 

Let me give you an example.   One justification that Congress gave for Section 3 back in 1996 was that it would promote procreation and “responsible child rearing.”  

 

But there is no evidence that same-sex couples are anything other than fully capable of responsible parenting and child rearing.   In fact, the opposite is true.   It won’t surprise anyone here today that many leading medical, psychological, and social welfare organizations have concluded, after numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

 

As today’s gathering makes clear, hundreds of thousands of children are being raised in this country by gay and lesbian parents.   By denying the children of legally married same-sex couples the benefits that Congress created to foster stable home lives for children, Section 3 of DOMA in fact undermines the security of the very children it claims to protect.  

 

The Department recognizes that, ultimately, the courts will have the final say on whether Section 3 is unconstitutional.   To allow that process to play out in an orderly fashion, the President has directed the Executive Branch to continue enforcing Section 3 even as we encourage courts to conclude it is not a valid law.

 

So far, in our first case on Section 3’s constitutionality since the President’s announcement, a district court agreed with the Department, found that heightened scrutiny applied to classifications based on sexual orientation, and struck down DOMA as a result.  This is the first time that any federal court has made such a ruling based on heightened scrutiny.  And there will be more rulings to come.

 

Meanwhile, as DOMA was a law passed by Congress, that body can also pass legislation to repeal DOMA.   The President has endorsed legislation that would do just that — the Respect for Marriage Act.  

 

Beyond DOMA, the Department has committed itself to combating hate crimes, bullying, and harassment.   That commitment is based on a simple truth, which the Attorney General recently affirmed (at another White House LGBT conference): “no one deserves to be bullied, harassed, or victimized because of who they are, how they worship, or who they love.”   According to the FBI, there are more than 1,000 hate crimes against LGBT people every year, and these numbers increased from 2005 to 2010.  

 

The Department’s Civil Rights Division is vigorously enforcing the landmark Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which provides federal prosecutors with new resources and authorities to seek justice on behalf of all those who are victimized on the basis of their race, ethnicity, religion, national origin – and, for the first time ever – their sexual orientation, gender identity, or disability.   Since its enactment in 2009, the Department’s Civil Rights Division has trained thousands of law enforcement officers and community stakeholders on the law — to ensure this powerful tool is put to good use to protect individuals from violence and intimidation and to achieve justice for the victims of these despicable acts.

 

Already, these efforts have yielded significant results.    Just this month, the Department secured an indictment alleging that two men in Harlan County, Kentucky kidnapped and assaulted a man because he was gay – the very first federal hate crime charge based on sexual orientation.   If convicted, the defendants face a maximum penalty of up to life in prison.

 

Hate crimes prosecutions are essential.  But they alone are not enough.  

 

That’s why the Department is working – in close cooperation with our state and local partners and through our Defending Childhood Initiative – to help prevent these crimes before they occur, and to encourage greater reporting when they do.   It’s why we’ve joined forces with other federal agencies, like the Department of Education, to intervene in communities and school systems where discrimination, bullying, and harassment have been reported.   And it’s why we’re reaching out to our nation’s young people through educational programs that teach tolerance and understanding.  

 

As all of these examples make clear, the Department is working hard to protect and support LGBT families.   And I want to end by sharing one more important initiative on this front: our broad-reaching efforts to protect consumers.  This work isn’t really particular to the LGBT community.   But I mention it out of recognition that LGBT families are, really, just families.   And families spend most of their day worrying about basic issues.   Like mortgages, and tuition, and health.  

 

So, within the Department, we have significantly increased our civil and criminal enforcement of federal consumer protection laws, and we have expanded our focus to include new areas that impact families on a daily basis.

 

These range from our efforts to negotiate the recent $25 billion settlement between the states and the nation’s biggest mortgage lenders over foreclosure abuses to defending the President’s landmark health care legislation – the Affordable Care Act – which aims to ensure that no child goes without health care.   They include our work to prosecute mortgage fraud and foreclosure rescue scams that prey on families at their most vulnerable point.   We also want to make sure that the food and medicine you buy is safe, so we are prosecuting manufacturers who market their drugs for uses not approved as safe by the FDA with as much vigor as we prosecute those who sell tainted baby food or supplements.   And we are working closely with the Consumer Product Safety Commission to make sure that the toys you buy for your kids won’t harm them.

 

And, because every family would love an hour in peace for dinner, we are actively pursuing companies that engage in robo-calling.

 

While these efforts may not always make headlines, they make a difference.   And while a lot of progress has been made, much remains for us to do.   But by reaffirming our commitment and continuing this important dialogue, we can work to promote and protect all of our families.

 

Thank you very much.

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