Obama government will stop defending the DOMA

[krazen1211]

Bacon King has a great point that I never thought of before. How would that legal conundrum be handled?

The same way that first cousin marriages are handled. They are void in the states that do not permit such behavior.

[krazen1211]

Not true, mostly. The states vary, but at least some have held otherwise. For example, the Arkansas Supreme Court (the most recent state court to address the issue, in 1986), found that Arkansas had to recognize out-of-state cousin marriages even though cousin marriage was expressly forbidden in Arkansas. A similar case was decided on a technicality in Arizona in 2005.

I don't think there has ever been a federal Constitutional challenge on the issue via Full Faith and Credit, so the federal courts have never considered the issue. Hard to see them finding for the state looking to deny recognition, though.

I'll try to find the case law. Part of the rationale that President Bush had for the Federal Marraige Amendment was the FF&C clause, but legal scholars pointed out at the time that no court had ever used the FF&C clause to force a state to accept any marriage contrary to its public policy.

State courts might be a different issue.

I believe this is the Arizona case, though. Seems to me like they're quite clearly leaning towards the voided category, in that they chose to apply Arizona law rather than Virginia law.





http://www.docstoc.com/docs/19666380/Cook-v-Cook-Arizona-Court-of-Appeals-1

[krazen1211]

Did you notice that the contract to represent Boehner in this losing case included a gag order banning all members of this law firm from advocating against DOMA, even in their private time, as private individuals? Do you think it is "gay activist bullying" to oppose that provision and think it was an overreach on the part of your side to impose on a large law firm?

By definition, if its a voluntary contract, there is no overreach.

I wonder if the gag order still applies, and if so, if they can slam S&K for a breach.

[krazen1211]

Are we debating what is legally permissible or what is overreach in a general sense? Everything we've talked about so far is legally permissible, including S&K's pull-out, but people have gotten upset for other reasons. Ditto the gag order. Various employees of S&K got the gag order through no decision of their own and obviously someone in the firm decided after the fact they shouldn't have agreed to it and added it to everyone's term of employment.

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I would so love it for Boehner, Gallagher, etc. to bring it on and fight this issue. They won't. Some Pubbies might like to see the Speaker of the House sue a private law firm for not gagging random attorneys who speak out against DOMA, but this isn't 2004, and that kind of random vindictiveness would play very, very poorly among the base Obama needs to come out and swing voters who don't care for that kind of persecution.

What is legally permissible. I don't have a problem with S&K; it seems pretty obvious that they wanted Clement because he's a stud, and they got him. S&K lost one of the premiere lawyers in the nation. Sucks to be them.

I wonder if there's other precedence for this. I forget what law firm defended OJ Simpson back in the day, but having random attorneys at that law firm bashing OJ certainly wouldn't have helped the defense.