Regarding JW’s FOIA lawsuit, on February 23, 2011, Attorney General Eric Holder issued a statement announcing that the Obama DOJ would not defend the constitutionality of Section 3 of the DOMA, which defines marriage for federal purposes as the union of a man and a woman, in two recently-filed cases:  Pederson v. Office of Personnel Management andWindsor v. United States.  Attorney General Holder also announced the DOJ would not defend DOMA as applied to same-sex married couples in any other pending or future litigation.

In response, between February 24 and March 1, 2011, Judicial Watch filed two FOIA requests with the Office of Information Policy, a component of the DOJ, as well as a separate FOIA with Justice’s Referral Unit seeking internal DOJ communications related to the DOMA decision as well as correspondence between DOJ and members of Congress, the White House, and outside entities.  Outside entities include liberal special interest group, such as The American Civil Liberties Union, Freedom to Marry, Gay and Lesbian Advocates and Defenders, Moveon.org, the Rainbow/PUSH Coalition and the Service Employees International Union.

The Office of Information Policy and the Referral Unit both acknowledged receipt of Judicial Watch’s FOIA requests but have failed to respond to these requests within statutory allotted time frame.  In fact, the DOJ has failed to release any records or indicate when a response is forthcoming, prompting Judicial Watch’s lawsuit.

According to a recent article in Politico, entitled, “Gay donors fuel President Obama's 2012 campaign,” one reason for the Obama administration’s support of same-sex marriage might have to do with campaign fundraising:  “President Barack Obama’s reelection campaign is banking on gay donors to make up the cash it’s losing from other groups of wealthy supporters who have been alienated and disappointed by elements of Obama’s first term.”

With respect to Judicial Watch’s amicus curiae brief filed with the California Supreme Court, Judicial Watch maintains the official proponents of Proposition 8, have the right to defend the constitutionality of the provision in court, particularly when elected officials refuse to do so:  “At stake in this case is the ability of California’s public officials to thwart the will of the people of California, as expressed through the initiative process, by failing to defend an initiative in court when it is challenged,” Judicial Watch explained in its brief.  “If this Court finds that the proponents of an initiative have no such recourse when elected officials fail to defend an initiative in court, California’s political officials will be given a clear opening to abuse the powers entrusted to them by the people of California in a manner that is not transparent and not accountable.”

On August 4, 2010, Chief Judge Vaughn Walker ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.  On August 16, 2010, the U.S. Court of Appeals for the Ninth Circuit ordered the judgment stayed pending an appeal.  Former Governor Schwarzenegger and current Governor Brown have both refused to defend Proposition 8 in court, prompting proponents of the initiative to seek to intervene as defendants (Kristin M. Perry, et al v Edmund G. Brown as Governor, etc. et al).  These proponents include:  Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com.  The U.S. Court of Appeals for the Ninth Circuit has now asked the California Supreme Court to decide whether Prop 8 proponents are permitted to defend the law before proceeding with the appeal.

“The institution of marriage is under vicious attack not only by President Obama and the Holder Justice Department, but also by liberal politicians and activist courts at the state level,” said Judicial Watch President Tom Fitton.  “When liberals lose at the ballot box they ask liberal judges to bail them out.  The citizens of California spoke loudly and clearly on Election Day 2008 and now they deserve to have a voice in court.  Even worse, these radicals have seemingly convinced President Obama and Attorney General Eric Holder to do their part by refusing to defend the federal marriage law.  Judicial Watch took these strong actions in court not only to help defend traditional marriage but to uphold the rule of law that is under assault in California from the Governor’s Mansion and Washington DC from the White House.”