Obama government will stop defending the DOMA

[Grumpier Than Uncle Joe]

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Hard to see this as "growing politicization" of the Justice Dept. relative to the Bush years with this as an example.

Clinton's was no better, b33......they're all politicized.

I didn't pay much attention to this issue before Bush's second term and not at all when Clinton was President... this is something you know more about than I do.

Fair enough.....and for the record, I agree about Bush's Justice Department.

[Grumpier Than Uncle Joe]

By the way, without reading through all of the posts.......does anyone here finding the timing almost silly given what's going on around the globe at the moment?  (He should have done this much earlier, and during a relatively non-newsy period)

[ilikeverin]

By the way, without reading through all of the posts.......does anyone here finding the timing almost silly given what's going on around the globe at the moment?  (He should have done this much earlier, and during a relatively non-newsy period)

No, I find it perfectly rational; he wants it to be buried, to some extent.  Those who like it will notice and be happy, but those who don't are distracted by more important news.

[Grumpier Than Uncle Joe]

By the way, without reading through all of the posts.......does anyone here finding the timing almost silly given what's going on around the globe at the moment?  (He should have done this much earlier, and during a relatively non-newsy period)

No, I find it perfectly rational; he wants it to be buried, to some extent.  Those who like it will notice and be happy, but those who don't are distracted by more important news.

Thanks, friend.  I never thought of it from that angle.......a very plausible explanation indeed!

[Sbane]

By the way, without reading through all of the posts.......does anyone here finding the timing almost silly given what's going on around the globe at the moment?  (He should have done this much earlier, and during a relatively non-newsy period)

No, I find it perfectly rational; he wants it to be buried, to some extent.  Those who like it will notice and be happy, but those who don't are distracted by more important news.

Yeah, I agree with this.

[Verily]

By the way, without reading through all of the posts.......does anyone here finding the timing almost silly given what's going on around the globe at the moment?  (He should have done this much earlier, and during a relatively non-newsy period)

No, I find it perfectly rational; he wants it to be buried, to some extent.  Those who like it will notice and be happy, but those who don't are distracted by more important news.

Yeah, I agree with this.

Me too. I think it was timed to be quickly driven out of the news by Libya, Bahrain, Wisconsin, Christchurch, etc.

[Grumpier Than Uncle Joe]

By the way, without reading through all of the posts.......does anyone here finding the timing almost silly given what's going on around the globe at the moment?  (He should have done this much earlier, and during a relatively non-newsy period)

No, I find it perfectly rational; he wants it to be buried, to some extent.  Those who like it will notice and be happy, but those who don't are distracted by more important news.

Yeah, I agree with this.

Me too. I think it was timed to be quickly driven out of the news by Libya, Bahrain, Wisconsin, Christchurch, etc.

AG Holder was in Pittsburgh yesterday speaking and declined comment on the issue.......

[cinyc]

That's really the only issue that matters - as that would be a huge executive power grab if this could not be done.

Congress can choose to appoint someone. I wonder if the House GOP may actually decide not to do so, because this is the one part of DOMA which is clearly and unequivocally indefensible, and Boehner isn't looking to stir up the youngs before 2012 with a culture war where they have already banked all the votes they can get out of the issue.

Indefensible to gay rights activists, perhaps.  But not indefensible to the Republican social conservative base.  The Republicans are dead with their base if they don't fight Obama's nonsensical decision.

[Grumpier Than Uncle Joe]

That's really the only issue that matters - as that would be a huge executive power grab if this could not be done.

Congress can choose to appoint someone. I wonder if the House GOP may actually decide not to do so, because this is the one part of DOMA which is clearly and unequivocally indefensible, and Boehner isn't looking to stir up the youngs before 2012 with a culture war where they have already banked all the votes they can get out of the issue.

Indefensible to gay rights activists, perhaps.  But not indefensible to the Republican social conservative base.  The Republicans are dead with their base if they don't fight Obama's nonsensical decision.

How are they going to fight him, except with words?  (Not rhetorical)

[Brittain33]

That's really the only issue that matters - as that would be a huge executive power grab if this could not be done.

Congress can choose to appoint someone. I wonder if the House GOP may actually decide not to do so, because this is the one part of DOMA which is clearly and unequivocally indefensible, and Boehner isn't looking to stir up the youngs before 2012 with a culture war where they have already banked all the votes they can get out of the issue.

Indefensible to gay rights activists, perhaps.  But not indefensible to the Republican social conservative base.  The Republicans are dead with their base if they don't fight Obama's nonsensical decision.

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

[Dan the Roman]

That's really the only issue that matters - as that would be a huge executive power grab if this could not be done.

Congress can choose to appoint someone. I wonder if the House GOP may actually decide not to do so, because this is the one part of DOMA which is clearly and unequivocally indefensible, and Boehner isn't looking to stir up the youngs before 2012 with a culture war where they have already banked all the votes they can get out of the issue.

Indefensible to gay rights activists, perhaps.  But not indefensible to the Republican social conservative base.  The Republicans are dead with their base if they don't fight Obama's nonsensical decision.

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

Indefensible under current law. If congress wanted to, it could prohibit the federal government from recognizing any marriage licenses issued in MA, NH, CT, VT, and Iowa. What it can't do is take a legally indistinguishable type of document(since there is no separate gay marriage and straight marriage license forms, not even gender is included on some of them) and honor some and not honor others.

[Verily]

That's really the only issue that matters - as that would be a huge executive power grab if this could not be done.

Congress can choose to appoint someone. I wonder if the House GOP may actually decide not to do so, because this is the one part of DOMA which is clearly and unequivocally indefensible, and Boehner isn't looking to stir up the youngs before 2012 with a culture war where they have already banked all the votes they can get out of the issue.

Indefensible to gay rights activists, perhaps.  But not indefensible to the Republican social conservative base.  The Republicans are dead with their base if they don't fight Obama's nonsensical decision.

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

Indefensible under current law. If congress wanted to, it could prohibit the federal government from recognizing any marriage licenses issued in MA, NH, CT, VT, and Iowa. What it can't do is take a legally indistinguishable type of document(since there is no separate gay marriage and straight marriage license forms, not even gender is included on some of them) and honor some and not honor others.

 At the least, it seems highly unlikely the Court would allow Congress to pass such a law, even if it had to make up Constitutional doctrine to do so.

[cinyc]

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

Again, to gay rights activists.  The DOMA is perfectly defensible on constitutional grounds.  Nothing in the constitution confers rights to people due to sexual orientation, or so the argument goes. 

[DrScholl]

The law has no precedent in the constitution and there certainly isn't be any amendment or text that protects the law.

[Brittain33]

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

Again, to gay rights activists.  The DOMA is perfectly defensible on constitutional grounds.  Nothing in the constitution confers rights to people due to sexual orientation, or so the argument goes.  

Cinyc, if it isn't clear, I am talking about the one section of DOMA that empowers the federal government to decline to recognize certain legal state marriages. You are not on solid ground here with your characterization of this as a minority view or an issue of special rights based on sexual orientation--it's about equal treatment of state marriages, as has always been done. I stand by what I said and the vast majority of con law experts are with me. All you are doing here is repeating Sam's ad hominem criticism, not making a case.

Now, the part of DOMA that allows Alabama and Utah to ignore my marriage may be found constitutional, I don't know; we will find out eventually and the DOJ hasn't said anything affecting those appeals. Similarly, the case for the legitimacy of prop 8 is very different and I wouldn't predict how Kennedy will rule on that.

[Brittain33]

Eric Holder, Bill Daley, and Barack Obama are not gay activists.

[Dan the Roman]

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

Again, to gay rights activists.  The DOMA is perfectly defensible on constitutional grounds.  Nothing in the constitution confers rights to people due to sexual orientation, or so the argument goes. 

But it doesn't, because there is no such thing as a legal concept of "same-sex" marriage. Nor is their a federal marriage license for which the federal government could set standards. What there is a federal law saying a marriage certificate issued by the state of Massachusetts makes one eligible for certain benefits, unless it is issued to a certain group of people.

This is not about whether a federal law defining marriage, and taking over the issuance of licenses is constitutional. Such a law almost certainly is. It is whether the federal government can outsource it to states, but then deny recogniztion to state recognized partnerships on a basis of guess work. Since again, MA does not report to the Federal government which marriages are same-sex and which aren't.

Again, what pray tell, is the legal difference between a Massachusetts Marriage license issued to Sam and Steve and Sam and Paula. Not what is the justification for treating them differently, which is the prerogative of the state of Massachusetts, but what makes them legally distinct?

[Bacon King]

Even besides its anti-gay bigotry, the DOMA is an iffy law regardless.

Let's say Brittain33 here decides to move to, say, South Carolina. This state, through DOMA, doesn't recognize his marriage to another man. He could thus legally marry a woman there. Per the US Constitution, his home state would be forced to recognize his South Carolina marriage even though he already has a recognized marriage with his MA husband and polygamy is illegal. Confusing legal hellhole waiting to happen.

[cinyc]

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

Again, to gay rights activists.  The DOMA is perfectly defensible on constitutional grounds.  Nothing in the constitution confers rights to people due to sexual orientation, or so the argument goes.  

Cinyc, if it isn't clear, I am talking about the one section of DOMA that empowers the federal government to decline to recognize certain legal state marriages. You are not on solid ground here with your characterization of this as a minority view or an issue of special rights based on sexual orientation--it's about equal treatment of state marriages, as has always been done. I stand by what I said and the vast majority of con law experts are with me. All you are doing here is repeating Sam's ad hominem criticism, not making a case.

Now, the part of DOMA that allows Alabama and Utah to ignore my marriage may be found constitutional, I don't know; we will find out eventually and the DOJ hasn't said anything affecting those appeals. Similarly, the case for the legitimacy of prop 8 is very different and I wouldn't predict how Kennedy will rule on that.

The federal government has as much a right to define marriage in a way different from the states as it does anything else.  It is a sovereign that need not make federal determinations based on how states define marriage.  If the federal government wants to define marriage as between a man and woman for federal purposes regardless of what Massachusetts says, it can.  Massachusetts cannot bind the federal government for federal purposes.

Like most in the halls of academia, the vast majority of constitutional law academics are liberals who believe in the "right" to same-sex marriage.  They also believe in the concept of a living constitution, where the most special special interest group of the day can claim new "rights" that they neither traditionally have had nor deserve to get in any manner except through the ballot box.

[MyRescueKittehRocks]

Gingrich is now advocating impeachment over this

[exopolitician]

Gingrich is now advocating impeachment over this

Newt Gingrich is a moron, plus I thought he was talking about if Palin was doing things Obama has down now as President, she would be barraged with calls of Impeachment...or some nonsense like that.

[opebo]

Again, to gay rights activists.  The DOMA is perfectly defensible on constitutional grounds.  Nothing in the constitution confers rights to people due to sexual orientation, or so the argument goes. 

That's just one interpretation, cinyc.  Obviously, I would interpret it differently.  You can interpret it however you like.

[Bacon King]

The DOMA is perfectly defensible on constitutional grounds. 

five words, my friend: Full Faith and Credit Clause.

[cinyc]

The DOMA is perfectly defensible on constitutional grounds. 

five words, my friend: Full Faith and Credit Clause.

Which binds the federal government how, exactly?

[Torie]

The DOMA is perfectly defensible on constitutional grounds.  

five words, my friend: Full Faith and Credit Clause.

Actually, that clause does not apply to the gay marriage thing, because apparently SCOTUS precedents are clear that state public policy in such matters trumps it. But it is shaky arguably under the equal protection clause as it evolves, and also potentially the right to move about freely (the "the fundamental right to travel" concept). If you marriage is "dissolved" if you move from Mass to Miss, that clearly truncates that right.

In my opinion, it would be better for a critical mass of states to adopt gay marriage democratically, and then have a federal law nationalizing it. But that takes time, and I appreciate the impatience. You only live once, and time is precious. And unlike abortion, once legalized, by judicial fiat or otherwise, I strongly suspect the issue will just fade away, because it is just so silly. In that sense, it is a far different customer from the abortion issue, which precisely because it was all by judicial fiat, and involves life and death, and fundamental ethical issues, as to which there is no right or wrong answer, but only something akin to a priori assumptions and beliefs, continues to be a toxin in the public square.

Just my two cents.