[Note: Oops. I tried to post the following last Wednesday, as a follow-up to this post, but just discovered that I had inadvertently left the post as an unpublished draft.]

I’ll highlight two worthwhile posts from the Volokh Conspiracy, both from opponents of the Defense of Marriage Act:

1. Orin Kerr explains how the Obama administration’s refusal to defend DOMA departs sharply from DOJ’s longstanding practice—and why folks should be reluctant to welcome that departure:

If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights.… This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.
By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.
If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power.

(My Weekly Standard article from a few months ago—subheadlined “When may a president decline to defend a federal law?”—explores similar territory.)

2. Dale Carpenter explains that, notwithstanding how the Obama administration may try to spin things, its position necessarily implies that “the laws of 45 states barring gay marriage are unconstitutional.” In other words, the grounds on which the Obama administration refuses to defend DOMA dictate that it also believes that there is a federal constitutional right to same-sex marriage. Never mind how much President Obama, as presidential candidate Obama, claimed to believe otherwise.