National Journal is reporting that the president is ordering the Department of Justice not to defend the Defense of Marriage Act in two pending court challenges in the U.S. Court of Appeals (1st and 2nd Circuits). He believes, the report says, that the law is unconstitutional. There’s no word on the analysis used to come to this conclusion; I suspect politics is at the core [see below].
There is something about the marriage issue that provokes an “any means necessary” approach from its proponents (among whom I believe we can count the president, notwithstanding campaign rhetoric to the contrary).
The president’s strategy, however distasteful, could be successful. In almost every successful same-sex-marriage case so far, the attorneys charged with defending the marriage laws either refused to do so (Iowa, Northern District of California) or made only pro forma defenses while conceding key points to the pro-redefinition side (Connecticut, California Supreme Court). Whether it is a good thing to have key social policies decided by lawyer inaction is an important question.
Presumably Congress can seek to intervene in the DOMA suits in order to defend the law. Maybe the federal courts need a public-defender program for statutes that have fallen out of favor with the elites in power.
Update: Daniel Foster has very helpfully provided the DOJ letter justifying (if that’s the right word) the president’s decision not to defend DOMA. The basic argument seems to be: (1) “Sexual orientation” is like race for all legal purposes, and (2) some DOMA supporters in Congress made arguments that reflect “moral disapproval” of gays and lesbians, so the law really can’t be justified.
Some very initial reactions
● The DOJ (and the president) are attempting to unilaterally amend the Constitution to add a sexual-orientation discrimination clause.
● Over the last decade, most of the courts that have weighed in on the issue have found marriage laws to be consistent with the federal Constitution or the relevant state constitution, but the DOJ does not even mention these decisions.
● If the “equal protection component” of the 5th Amendment means that Congress can’t define marriage as the union of a man and a woman, how could the states do so under the equal protection clause of the 14th Amendment?
● Can the letter’s assertion that gay and lesbian activists lack political power really be take seriously, given this very decision, the repeal of DADT, etc.?
This is fundamentally untrue. I live in Iowa, and followed the case. It was a hard fought, hard litigated case. The AG here defended the law to the best of his ability, and took in a number of amicus briefs on it. The AG also made exactly the same arguments that anti SSM attorneys themselves make when given the opportunity.
The AG lost here. Agree with the decision or not, but the government in Iowa didn't "take a dive" in spite of political pressure. It just lost. That happens sometimes, and it should happen. It would be terrifying for our liberties indeed if the Government could be assured of winning every case dealing with constitutional rights.
FYI, reading carefully, this letter only applies to the federal benefits portion, not to the full-faith and credit portion. Which means that, if the Federal Government is sued for marriage related benefits by an already married couple in Iowa, Massachusetts, etc., the AG will agree to an injunction requiring such benefits be given. This will really only impact those states where SSM is already legal.
Reply to this commentLinkReport AbuseMonica Crowley was just on with Megyn Kelly, and explained it perfectly--this is illegal. Obama cannot pick and choose (even tho he does with Immigration Law) which laws he wants to support or defend--a law is a law and, regardless of feelings of it's result, under the Constitution must be enforced UNTIL it is found unconstitutional through the courts or is changed BY LAW by the Congress. The President has no authority to determine anything Constitutional (like O'Care) or Unconstitutional (DORMA)--the Congress makes laws, he is to enforce them.
Reply to this commentLinkReport AbuseThe cynic in me says it's about the money -- the marriage penalty that same-sex unions can otherwise dodge on their federal tax returns (that married couples, as traditionally understood, may not dodge).
See, Obama's just sticking it to GOProud and those other "malefactors of great wealth"!
Nah, it's another salvo in the culture war.
Reply to this commentLinkReport Abuse"The basic argument seems to be: (1) 'Sexual orientation' is like race for all legal purposes"
No, the argument is not saying that. Race gets strict scrutiny. The president and AG are arguing for heightened scrutiny. Also, you are a law professor.
"The DOJ (and the president) are attempting to unilaterally amend the Constitution to add a sexual-orientation discrimination clause."
No, they are just choosing not to defend the constitutionality of a statute they believe is not constitutional. Again, you're a law professor, you know this.
"Over the last decade, most of the courts that have weighed in on the issue have found marriage laws to be consistent with the federal Constitution or the relevant state constitution, but the DOJ does not even mention these decisions."
It's not what the courts say that matters here. The president and AG have sworn an oath to defend the constitution, if they believe DOMA is unconstitutional they cannot say otherwise in court.
"If the 'equal protection component' of the 5th Amendment means that Congress can’t define marriage as the union of a man and a woman, how could the states do so under the equal protection clause of the 14th Amendment?"
You make a good point. State prohibitions on same sex marriage violate equal protection.
"Can the letter’s assertion that gay and lesbian activists lack political power really be take seriously, given this very decision, the repeal of DADT, etc.?"
Gay people are a minority and always will be. So yes, they will always lack political power. That's why states can prohibit same sex marriage even though, as you point out, it violates the equal protection clause.
Reply to this commentLinkReport Abuse"The president’s strategy, however distasteful, could be successful. In almost every successful same-sex-marriage case so far, the attorneys charged with defending the marriage laws either refused to do so (Iowa, Northern District of California) or made only pro forma defenses while conceding key points to the pro-redefinition side (Connecticut, California Supreme Court). Whether it is a good thing to have key social policies decided by lawyer inaction is an important question."
EXACTLY. Those who believe that the President and the DOJ are only declining to enforce the federal definition will not have an impact on the states are fooling themselves. This decision explicitly opens the door for gay rights groups to begin challenging those states which will not recognize gay marriage from other states.
Reply to this commentLinkReport AbuseWell, Gee, should we take the Fred Upton approach? Fred's willing to sit around and wait to see if the courts rule it's constitutional for Lisa Jackson to tell you what kind of light bulbs to use. So maybe we should just sit around and wait to see if Obama and Holder rule that Habeas Corpus is unconstitutional before we impeach them for High Crimes and misdemeanors. Or would that maybe be..........too late?
Reply to this commentLinkReport AbuseAnyone here been harmed by gay marriage yet?
Reply to this commentLinkReport AbuseIt's all very easy. The states and the Feds should get our of the marriage business.
Everyone who wants to have some sort of official contract in place to define their relationship should get a civil union license or whatever you want to call it.
Marriage should be left to the churches. You can get "married" in church but the relationship would have no legal standing.
You can get "contractually bound" (or whatever you want to call it) by the state and not have that relationship recognised by your church.
I blame the church of England in the 1700's who moved aggressively to monopolise the marriage market.
Reply to this commentLinkReport AbuseHolder's letter is malpractice. He and his partisan staff are incompetent.
Homosexual couples and heterosexual couples are not similarly situated. Society treats them differently in many ways, for excellent reasons that are apparent to anyone with a basic grasp of biology. It doesn't matter what level of scruitiny one applies to laws that seek to preserve our traditional understanding of marriage as a monogomous alliance between a man and a woman for the purpose of creating and/or sustaining a family. Such laws draw a rational distinction that serves a compelling state interest in the narrowest possible way. The Supreme Court's levels of review are meaningless claptrap in the best of circumstances. With respect to DOMA and SSM generally, they are utterly irrelevant.
Put simply, there is no rational argument for the proposition that the traditional definition of marriage discriminates against anyone. Holder's letter is nonsense, like an extended argument that the Constitution forbids states to deny driver's licenses to the blind. The idea that marriage is constitutionally problematic because it excludes homosexuals is a ludicrous left-wing fantasy and any lawyer who bases an argument on that fantasy is a fool.
Reply to this commentLinkReport AbuseHow can you suppose that your question is merely rhetorical, Jason, or that it helps your cause?
All of us have been harmed by the redefinition of marriage insofar as it has been imposed. And all of us have been harmed more generally by the judicial usurpation of power and the undermining of the Constitution.
If you want examples you can see, hear, and touch, though, I give you Catholic Charities, which was driven out of the adoption business as a consequence of the redefinition in Massachusetts. And I give you the families that have been punished for objecting to having their children taught in school that homosexuality is normal or even praiseworthy. I give you the fifth-graders who have been taught Lesbian sex techniques in class. In the case of the fifth-graders, the teacher opined that nothing could be done about it now that "marriage" was the law of the land. I heard her say it myself, on the radio. There are many more examples, but 'tis enough, 'twill serve.
Reply to this commentLinkReport AbuseOh. I should mention, however, that as long as it is law, the government should enforce it. If you don't' want to enforce it, and if citizens don't want that law any more, they should go through legal means to convince their representatives to change or repeal the law.
The President is not above the law and he has a constitutional and moral obligation to to perform his duty and that includes seeing that the DOJ enforces laws duly passed by Congress.
As much as he is satirised as a king or emperor, he is not one and should not even remotely act like one. He cannot decree the status of laws.
Reply to this commentLinkReport AbuseAll strong points by Mr. Currie. Obama is trying to act as if sexual orientation is a suspect classification when SCOTUS has declined to recognize it as such. Indeed, laws that appear to draw distinctions on the basis of sexual orientation are entitled to the greatest deference towards constitutionality under Supreme Court case law - rational basis review.
Obama knows that the votes are not there on the Supreme Court to have DOMA declared unconstitutional, nor is there the Congressional or public support for repeal, so he's decided to try and circumvent democratic governance and popular opinion by simply refusing to defend the duly enacted law of the land for partisan political purposes and in dereliction of his responsibilities as the chief executive.
Boehner and the Republicans in Congress better step up and defend the rule of law against this attempted usurpation of Congress and the courts. What Obama is attempting to do (and what Jerry Brown previously did in California) is utterly repugnant to our system of government and, one could argue, a borderline impeachable offense.
Reply to this commentLinkReport AbuseActually, from the letter of AG Holder to Congress:
"Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised. "
The President is continuing with his duty to comply with the law.
Reply to this commentLinkReport Abuse"No, the argument is not saying that. Race gets strict scrutiny. The president and AG are arguing for heightened scrutiny. Also, you are a law professor."
Scurtiny? The DOMA addresses a constitutional problem. Believe it or not many states do not recognize gay marriage. DOMA protects states that do not recognize gay marriage from being forced to accept gays that were married in another state.
Reply to this commentLinkReport Abuse"Anyone here been harmed by gay marriage yet?"
No. So what? Sneering attitude is a basis for a law or not?
The funniest thing about this the liberals trying to make this an "obama evolving intellect" narrative rather than his usual cold pandering and completely shameless flip-flopping. He is a master Chicago politician.
Reply to this commentLinkReport AbuseToday's action by Obama has finally convinced me that Obama really was a top-notch constitutional law professor.....
.....on Mars.
Reply to this commentLinkReport AbuseJason: "Gay people are a minority and always will be. So yes, they will always lack political power."
Heads of major multinational corporations are also a minority. Are you saying that therefore they too, will always lack political power?
Reply to this commentLinkReport AbuseIf I remember correctly the Constitution (yeah that old thing) mandates that the executive "take care that the laws be enforced". I don't think it says anything about the President agreeing with them, just enforcing them.
Reply to this commentLinkReport AbuseThis is a cowardly act by Obama especially (since the DOJ is his puppy ona harness). Not een willing to defend a bill that was voted/approved by large margins in BOTH houses of Congress and signed into law by BILL CLINTON.
Reply to this commentLinkReport AbuseFot the person asking if anyone has been "harmed" by gay marrige- then why has every civilized country in history always recognized marriage as between one man, one woman? Even Islamic countries realize this (which liberals usually defend)...
Jason asks whether anyone has been harmed by gay marriage yet? This, of course, is the wrong question.
Can a society that forgets what marriage is for survive? That's more to the point.
Western Civilization rose in large part because Christian morality successfully channelled the sex drive in a productive direction. We learned from the Church to take sex seriously, approving of it only in the context of monogamous marriages where it serves the purpose of creating and sustaining families. This motivated people (especially men) to embrace parenthood and to provide for their families. This is a large part of what has made our civilization successful. It is far from clear that we can give up our moral foundation without losing the whole structure on top of it. It is quite clear that we can't celebrate homosexuality without dismantling our moral foundation.
The movement to normalize homosexuality is part of the left's generations old project of undermining the morality that supports our culture of free enterprise and individual liberty. Leftist want us to forget what sex and marriage are for so that they can dismantle our civilization and build Utopia on the ruins. Unfortunately, lots of people who aren't down for that struggle nonetheless lend the left a hand by shilling for SSM. There really is a sucker born every minute.
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