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Obama Tells DOJ to Take a Dive in DOMA Cases



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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.?



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