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Bench Memos

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Obama’s Dive on DOMA



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Some quick comments on today’s news that President Obama has determined that the Defense of Marriage Act is unconstitutional and has ordered the Department of Justice to stop defending (or at least pretending to defend) DOMA in court:

1. As I’ve pointed out in various posts, the Obama administration has been sabotaging DOMA litigation from the outset. Today’s action at least has the modest virtue of bringing that sabotage out into the open.

2. Attorney General Holder has the gall to claim to be acting consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” There are lots of reasonable arguments in defense of DOMA. The Obama administration has abandoned those arguments for purely political reasons.

3. Holder says that the Obama administration “will continue to enforce” DOMA. But it is logically incoherent for the Obama administration to refuse to defend DOMA on the ground that it’s clearly unconstitutional and to continue to enforce it. The obvious explanation for this incoherence is political: Obama doesn’t have the guts to take the political heat for not enforcing DOMA, but he’s hoping that his refusal to defend it will lead to court rulings that he can hide behind. [Update: I’ve added the underlined passage to make explicit what I hope in context was already sufficiently clear.]



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