Feds to no longer defend DOMA

[aVaKus]

(via Joe.My.God. (http://joemygod.blogspot.com/2011/02/breaking-feds-to-give-up-on-doma.html))

Earlier today, Attorney General Eric Holder issued a statement (http://www.justice.gov/opa/pr/2011/February/11-ag-222.html) saying that the federal government will no longer defend Section 3 of the Defense of Marriage Act in Court.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

*does happy dance* :)

What will happen next? (besides some teabagger heads exploding)

Sadly, I expect this to fuel a lot more ballot initiatives like Prop8 and what's happening in Montana (http://joemygod.blogspot.com/2011/02/montana-bill-to-ban-all-local-lgbt_23.html)right now.

[National Kato]

Great news, thanks for posting aVaKus! I expect this is the first sign of just how powerful the dreaded homosexual lobby is in Washington. ;)

For reference, the text of Section 3 of DOMA is:

Section 3. Definition of 'marriage' and 'spouse':

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

[Ox]

I can't wait to see what you guys think when a Republican White House refuses to defend the constitutionality of legislation you like.

[Ink Asylum]

According to the statement this isn't the first time this has happened:

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

[AntonThaGreat]

Until the conservatives and teabaggers (mutually exclusive in my opinion) back off a bit, maybe a lot, I honestly believe it will take a lot of protest and civil unrest before all unions between any human beings are legal.

[Ink Asylum]

Time will take care of that. It might not be happening as quickly as I'd like, but barring some kind of crazy backlash, Americans will solidly be in support of gay marriage within a generation.

[RandoM51]

It might not be happening as quickly as I'd like, but barring some kind of crazy backlash, Americans will solidly be in support of gay marriage within a generation.

You mean members of the greater North American Co-Prosperity Sphere will solidly be in support of gay marriage within a generation. After the petro-riots and widespread starvation, few will have the time or energy to care about any marriage other than their own.

[Narradisall]

Until the conservatives and teabaggers (mutually exclusive in my opinion) back off a bit, maybe a lot, I honestly believe it will take a lot of protest and civil unrest before all unions between any human beings are legal.

Then what about Goats! SLIPPERY SLOPE! SLIPPERY SLOOOOOPE!!!111 ;)

[roboninja]

I can't wait to see what you guys think when a Republican White House refuses to defend the constitutionality of legislation you like.

If the legislation I like is trampling rights of others for no reasons other than the amorphous, then fuck me, I deserve it.

[jeffbax]

Its about time the administration got some balls on the gay rights issue. Only took two years.

[Ox]

If the legislation I like is trampling rights of others for no reasons other than the amorphous, then fuck me, I deserve it.
I'm not saying you'll deserve it. I'm saying that there are constitutional objections to a host of stuff like environmental, business, and other laws, and this is a way to have that stuff made unconstitutional without either democratic support or a majority of the Supreme Court.

When President Paul makes the Federal Reserve and the Voting Rights Act unconstitutional, this victory is going to look a lot more expensive. The left apparently doesn't even see this, which says something about how forward-looking the left is.

[Ink Asylum]

Does declaring you're not going to defend the constitutionality of a law interfere with how it functions?

[National Kato]

When President Paul makes the Federal Reserve and the Voting Rights Act unconstitutional, this victory is going to look a lot more expensive.

My understanding is that this action - or inaction - by the DOJ doesn't render the law unconstitutional. It's not an overnight process, nor does it bypass democratic or judicial oversight. Here's the immediate practical effect (http://firstread.msnbc.msn.com/_news/2011/02/23/6116207-obama-admin-will-no-longer-defend-federal-marriage-act-in-court) of this change:-The Defense of Marriage Act remains in effect unless a federal court strikes it down or Congress repeals it.

-The government will stop defending the law in two court cases, in New York and Connecticut, where the law has been challenged, and in any other cases challenging the law.

-If the law is to be defended, members of Congress would have to step up and join those lawsuits.
So it's not game-over for DOMA, not yet. The courts and Congress will still have to act to strike it as unconstitutional. I also don't believe support for repealing DOMA is limited to the 'left.'

[aVaKus]

Ox, since you are very well versed in how this stuff works, I have a question for you. Wouldn't the Federal Reserve and Voting Rights Act have to be found unconstitutional in a lower court and appealed before the current administration can decide whether to defend it or not?
To me, it seems that if the constitutionality of something is never questioned, then the administration announcing that they won't defend it is kind of moot.

Also, President Obama has said he wants DOMA overturned. Given the current makeup of Congress, overturning it there is out. That leaves the courts, and the 2 rulings against (Section 3 of) DOMA has put the current administration in a position where they are supposed to defend it. How do you defend something that you want to see die?

How I'm seeing it: (and I could be completely off here)
1. Obama knows he can't use Congress.
2. He could defend it (pissing off his supporters)
3. If he defends it and loses he would be accused of throwing the case. (pissing off both sides)
4. If he defends it and wins, he defeats his own goal (pisses off his supporters big time, and will probably have set back the gay civil rights movement at least another decade)
5. Refuse to defend it (pissing off those that already hate him while making his supporters happy)

[Ox]

Does declaring you're not going to defend the constitutionality of a law interfere with how it functions?
It can. If there's a suit, plaintiffs win automatically via default judgment if the suit is undefended. It's unclear whether members of Congress have standing to defend the constitutionality of the law; I tend to say not. Many suits can only be brought by the government, as well: if the EPA decided to stop bringing environmental cases, for example, that's effectively the same as repeal.

I agree that support for repealing DOMA is not limited to the left. But at least those on the right who support repeal recognize this is a troubling mechanism of achieving repeal. See here (http://volokh.com/2011/02/23/the-executive-power-grab-in-the-decision-not-to-defend-doma/). This is less of an issue once a case reaches the Supreme Court because the Court can ask others to submit arguments as amicus curiae, but in lower courts that's an extremely rare occurrence. What's weird is that the Administration will no longer be litigating DOMA's constitutionality, but it will continue to enforce DOMA.

EDIT: aVaKus, your questions are very good ones. For many statutes, challenging the constitutionality involves a private actor suing a government official who is enforcing the law to get him to stop: see, e.g., Brown v. Board, Roe v. Wade, Planned Parenthood v. Casey. You can also sue the government in some cases where the existence of the law creates reasonable apprehension that the law will be enforced against you, even if it hasn't yet. The DOJ would be involved in these cases from the very beginning as the named defendant in the lawsuit. If it defaults, the plaintiffs win. And non-party entities usually cannot appeal a decision if the named party that lost below chooses not to appeal. Not defending the constitutionality of an unchallenged statute is moot, but in reality it's not hard to find some activist group that would be willing to file a lawsuit challenging constitutionality after an announcement like this.

Defending a law you want to see die is not fun, but it's not that hard either. Every litigator knows how to present an argument he personally does not find convincing but that the court might. There are serious arguments that DOMA is constitutional; you can make those arguments even if you don't believe them. Frankly, I believe lawyers tend to be more effective at making arguments they don't agree with because zealots tend not to be good at spotting potential trouble points in their own theories.

Finally, you're correct that Obama is in a politically difficult position on DOMA litigation. I understand entirely why he wants to do this. But I think this tactic, if it becomes common, is one that will eventually cause the Administration's supporters to regret this decision.

[Voodoo]

I'm not sure why marriage is even officially recognized by the government. I think it would be better suited to be an asset contract between two individuals regardless if they are having sex.

For instance, let's use the example of Jay & Silent Bob. They are non-sexual life mates, through and through. I think it would be fair for them to bind into contract with each other for asset protection/combination as well as to share tax and health care burdens. It think it is unfair that to have this protection in states that recognize same sex marriage, it would only apply them only if they are a sexual couple, be them same sex or opposite sex. People that throughly trust each other regardless of sexual preference should be able to perform a legal binding between them.

[Ink Asylum]

It can. If there's a suit, plaintiffs win automatically via default judgment if the suit is undefended. It's unclear whether members of Congress have standing to defend the constitutionality of the law; I tend to say not. Many suits can only be brought by the government, as well: if the EPA decided to stop bringing environmental cases, for example, that's effectively the same as repeal.

The official statement seems to imply that members of Congress can indeed defend it, and you're the first person I've seen dispute that. We'll have to see what happens in the actual cases. It's not like there are any shortage of people in Congress that would leap at the chance to defend DOMA.

[aVaKus]

Damn that was fast Ox :), thank you for the the explanations.

Now a small part of me kind of wishes his administration would defend it just so I could see what arguments a non-zealot (if they were truly trying to defend it) would come up with. I am definitely very biased when viewing my side and the usually only hear arguments from zealots on the other side.

This reminded me of reading over Olson and Boyles statements in the Prop8 trial and how nice it was to hear the new things they brought to the argument.

[National Kato]

Boehner's official statement:

"While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation," he said in a statement.

I guess the Speaker doesn't believe Congress is capable of doing more than one thing at a time, so they'd better stop working on those anti-abortion bills.

[MagGnome]

Time will take care of that. It might not be happening as quickly as I'd like, but barring some kind of crazy backlash, Americans will solidly be in support of gay marriage within a generation.

I hope you're right. It would be nice to have equal rights in the "land of the free" within my lifetime. If it doesn't happen by the time I'm in my late 30s, I'll be sorely tempted to move elsewhere.


Its about time the administration got some balls on the gay rights issue. Only took two years.

Seriously...it's about time.

I do wish that the "gay community" would stop pulling out the fireworks every time we are thrown a small gesture, however. Everyone was so excited when DADT was repealed, except it's still in effect pending review. It seemed to me like a celebration over nothing, when we should be focused on more urgent matters, like that horrible law in Montana.


When President Paul makes the Federal Reserve and the Voting Rights Act unconstitutional, this victory is going to look a lot more expensive. The left apparently doesn't even see this, which says something about how forward-looking the left is.

About as forward-looking as the right is?

The Federal Reserve has always struck me as a very corrupt organization. I don't see why dismantling or reforming it would be such a bad thing.

[MagGnome]

Boehner's official statement:



I guess the Speaker doesn't believe Congress is capable of doing more than one thing at a time, so they'd better stop working on those anti-abortion bills.

What a dick, not to mention a giant hypocrite.

[jeffbax]

At the same time, there is certainly another risk of rising and unchecked executive power at play. It is his job to carry out the law of congress, even when they are terrible.

Overall, I'm still glad he's at least being openly opposed to anti gay rights legislation.

[Generation ABXY]

Seriously...it's about time.

I did love Carney's response about how the President is still "grappling" with the issue, himself. Way to take a stand.

[MagGnome]

Obama hasn't taken a stand on much of anything, unfortunately. :/

[Ink Asylum]

God bless the Onion: (http://www.theonion.com/articles/marauding-gay-hordes-drag-thousands-of-helpless-ci,19325/)

Marauding Gay Hordes Drag Thousands Of Helpless Citizens From Marriages After Obama Drops Defense Of Marriage Act

WASHINGTON—Reports continue to pour in from around the nation today of helpless Americans being forcibly taken from their marital unions after President Obama dropped the Defense of Marriage Act earlier this week, leaving the institution completely vulnerable to roving bands of homosexuals. "It was just awful—they smashed through our living room window, one of them said 'I've had my eye on you, Roger,' and then they dragged my husband off kicking and screaming," said Cleveland-area homemaker Rita Ellington, one of the latest victims whose defenseless marriage was overrun by the hordes of battle-ready gays that had been clambering at the gates of matrimony since the DOMA went into effect in 1996. "Oh dear God, why did they remove the protection provided by this vital piece of legislation? My children! What will I tell my children?" A video communique was sent to the media late yesterday from what appears to be the as-yet unidentified leader of the gay marauders, who, adorned in terrifying warpaint, announced "Richard Dickson of Ames, Iowa. We're coming for you next. Put on something nice."

[ShivaX]

http://news.yahoo.com/s/yblog_thelookout/20110228/us_yblog_thelookout/the-case-that-changed-obamas-mind-on-defense-of-marriage-act

Edith Windsor and Thea Spyer were together for more than 40 years when Spyer died in 2009. Not longer after her partner's death, Windsor received a $363,053 federal tax bill--a liability that she would not have faced had the federal government recognized their union.


Windsor is suing for the tax money back from the federal government, and the Obama administration has effectively decided she's right by dropping its defense. The administration will continue to enforce the law unless it is struck down by the courts or Congress.

The Justice Department will also drop its defense in a similar case in Connecticut federal court with seven plaintiffs. Each plaintiff in the Connecticut case is a surviving same-sex partner who is being denied benefits because the federal government doesn't recognize the marriage.

Attorney General Eric Holder has informed House Speaker John Boehner that he or other members of Congress may defend the law if they choose. No one has officially stepped forward yet to take on the defense


So if anyone in Congress wants to defend it they can. Noones speaking up as of yet.

Edit: For the love of all that is Holy the comments, the COMMENTS!

[MagGnome]

Hopefully they all get their money back. As I said before, I look forward to the day when gay men and women aren't treated as second-class citizens in their own country. I hear stories all the time about a partner being denied various rights, whether it's hospital visitations, estates, etc. It's sad.

[National Kato]

It's sad.

It's what Jesus would've done. :cool:

[MagGnome]

Yeah, that Jesus was such a hateful prick. :p

[Widgetcraft]

God bless the Onion: (http://www.theonion.com/articles/marauding-gay-hordes-drag-thousands-of-helpless-ci,19325/)

http://i7.photobucket.com/albums/y253/perigon/ETiJO.jpg

[ShivaX]

Yeah, that Jesus was such a hateful prick. :p

Blatantly stolen from somewhere else.

http://www127.pair.com/critical/jesus.jpg

[Panthera]

how conservatives view homosexuals

Ahahaha amazing Age of Empires reference there.

[Bone]

When President Paul makes the Federal Reserve and the Voting Rights Act unconstitutional, this victory is going to look a lot more expensive. The left apparently doesn't even see this, which says something about how forward-looking the left is.We're talking Ron Paul, and not Rand, right? I mean there is a snow day in Hell, and then there is eternal permafrost.