No Defense for DOMA

[crimresearch]

As the Tao says, 'Well well well..'

The administration has suddenly decided that the Defense of Marriage Act is not defensible... within the Department of Defense.

U.S. Attorney General Eric Holder has notified Congress the Justice Department will not defend the Defense of Marriage Act in a lawsuit by military personnel.

http://www.upi.com/Top_News/US/2012/02/17/Holder-US-will-not-defend-DOMA/UPI-68911329524277


My memory comes and goes these days, but it seems like somebody predicted this, oh... years ago.

 

[Alt+F4]

What a cop out. If the Obama administration has concluded that the law is unconstitutional, then they should do something more than just ignore it.

 

[TragicMonkey]

What a cop out. If the Obama administration has concluded that the law is unconstitutional, then they should do something more than just ignore it.

Such as what? The executive branch can't overturn law. The judicial can find it unconstitutional, or the legislature can rewrite it or supercede it with another. All the executive can do is enforce--or not.

 

[BenBurch]

What a cop out. If the Obama administration has concluded that the law is unconstitutional, then they should do something more than just ignore it.

This is exactly the correct response.

 

[JoeTheJuggler]

Obama and Holder announced this about a year ago.

ETA: Nevermind. I read the OP too quickly. Today's announcement was about another specific case--this one filed by military personnel. At any rate, today's decision is consistent with the decision announced last year.

 

[JoeTheJuggler]

What a cop out. If the Obama administration has concluded that the law is unconstitutional, then they should do something more than just ignore it.

No. They intend to allow lower federal court decisions finding DOMA unconstitutional to stand. Since they believe those decisions are right, it's appropriate for them not to pursue a defense of DOMA (to continue appeals, that is) in these cases.

 

[crimresearch]

Obama and Holder announced this about a year ago.

ETA: Nevermind. I read the OP too quickly. Today's announcement was about another specific case--this one filed by military personnel. At any rate, today's decision is consistent with the decision announced last year.

This is about the military's spousal benefits, and DoD recognition of states with gay marriage, not about DOMA overall.

 

[Alt+F4]

Such as what? The executive branch can't overturn law. The judicial can find it unconstitutional, or the legislature can rewrite it or supercede it with another. All the executive can do is enforce--or not.

Such as asking Congress to draft a bill to overturn the law. The President constantly calls on Congress to pass legislation he wants.

 

[JoeTheJuggler]

This is about the military's spousal benefits, and DoD recognition of states with gay marriage, not about DOMA overall.

True.

Though even the article in your OP cites ABC News as saying that Holder in this letter "essentially reiterated what he said in February 2011, when he announced the Obama administration had concluded the law -- which defines marriage as the legal union of one man and one woman -- is unconstitutional."

I take it you were using the word "suddenly" with tongue in cheek? (And I take it you were pointing to the fact that you saw this coming?)

 

[JoeTheJuggler]

Such as asking Congress to draft a bill to overturn the law. The President constantly calls on Congress to pass legislation he wants.

No need to. Also, why bother with trying to open a divisive debate in Congress over a bill that the GOP would likely block anyway?

 

[crimresearch]

True.

Though even the article in your OP cites ABC News as saying that Holder in this letter "essentially reiterated what he said in February 2011, when he announced the Obama administration had concluded the law -- which defines marriage as the legal union of one man and one woman -- is unconstitutional."

I take it you were using the word "suddenly" with tongue in cheek? (And I take it you were pointing to the fact that you saw this coming?)

Yes to both. The game that DOMA played was overturning the Constitution's full faith and credit clause.

I felt from the onset that the weakest link in DOMA was once DADT fell, that would open the idea of military personnel getting legally married and taking their license on base to get a dependent ID etc. which no official in a different state could void.

And of course being military would automatically establish a compelling federal interest, and toss any 'state's rights' argument right out the window.

 

[TragicMonkey]

Such as asking Congress to draft a bill to overturn the law. The President constantly calls on Congress to pass legislation he wants.

And no doubt he's noticed by now that asking this Congress to do anything is the surest way to have them rush to do the opposite. Yeah, it's cowardly of Obama not to take a stand, but actually having him try to do anything on this would be less successful than the coward's stance. Brave stands are like the Alamo: glamourous, notable, admirable...and unsuccessful.

 

[Travis]

Such as asking Congress to draft a bill to overturn the law. The President constantly calls on Congress to pass legislation he wants.

In an election year where the leading Republican seems to have one over the hearts of the nation with his promise to wage genocide on homosexuals?

Obama might do all this during his second term but not now while America is going nuts with its blood lust for anyone not heterosexual.

 

[TragicMonkey]

In an election year where the leading Republican seems to have one over the hearts of the nation with his promise to wage genocide on homosexuals?

Obama might do all this during his second term but not now while America is going nuts with its blood lust for anyone not heterosexual.

It's not so bad as that. The rabid baying of the extreme anti-gay is pushing more of the neutrals into tolerance if not outright pro-gaiety.

I would even suggest that a President Santorum would trigger more pro-gay social change as a counter-reaction than the nominally not-anti-gay president we have now.

 

[JoeTheJuggler]

Yes to both. The game that DOMA played was overturning the Constitution's full faith and credit clause.

Yep. I had a conversation with someone on a thread here somewhere on just that point a while back. It's pretty much a no brainer. The language of Section 2 of DOMA flatly contradicts the full faith and credit clause.

I felt from the onset that the weakest link in DOMA was once DADT fell, that would open the idea of military personnel getting legally married and taking their license on base to get a dependent ID etc. which no official in a different state could void.

I think I recall you (or someone else) saying that.

I guess the military is more accessible to some people than the several states that already issue licenses for gay marriages. The more the merrier!

And of course being military would automatically establish a compelling federal interest, and toss any 'state's rights' argument right out the window.

I guess that would address the idea of "federal marriage", but the full faith and credit clause already trumps any states' rights argument that a state can refuse to recognize these marriages (done in the military* or in states that have gay marriage).

*[ETA: Actually I don't guess the full faith and credit clause extends to the federal military, so your argument by compelling federal interest must be necessary.]

It seemed like an especially queer (in the archaic sense) law for opponents of gay marriage to pass. These are generally the same people (the religious right, social conservatives, even Tea Partiers) who are so strongly anti-federalist and pro states' rights.

 

[JoeTheJuggler]

Yeah, it's cowardly of Obama not to take a stand,

But he did. He took a stand not to defend the DOMA against decisions and suits charging that it's unconstitutional. In other words, he agrees it's unconstitutional.

I criticized Obama for not mentioning DADT for a full year into his presidency (when he could have suspended it immediately with a stroke of the pen--and then invited Congress to pass a law afterwards).

But his opposition to DOMA is clear and strong, and I applaud it.

 

[crimresearch]

Yep. I had a conversation with someone on a thread here somewhere on just that point a while back. It's pretty much a no brainer. The language of Section 2 of DOMA flatly contradicts the full faith and credit clause.


I think I recall you (or someone else) saying that.

I guess the military is more accessible to some people than the several states that already issue licenses for gay marriages. The more the merrier!



I guess that would address the idea of "federal marriage", but the full faith and credit clause already trumps any states' rights argument that a state can refuse to recognize these marriages (done in the military* or in states that have gay marriage).

*[ETA: Actually I don't guess the full faith and credit clause extends to the federal military, so your argument by compelling federal interest must be necessary.]

It seemed like an especially queer (in the archaic sense) law for opponents of gay marriage to pass. These are generally the same people (the religious right, social conservatives, even Tea Partiers) who are so strongly anti-federalist and pro states' rights.

I'm not talking about federal marriages, or marriage done in the military.

I was initially thinking along the lines of a GI stationed in Hawaii who gets married with a HI license, then they get transferred to Mississippi and try to deal with that state as a married couple... say using the dependent's ID card to get a driver's license, or filing state taxes jointly, make a will, or registering in school, etc.

I think that if someone wanted to make a test case, that would go right through the state courts to the federal bench.

 

[Travis]

It's not so bad as that. The rabid baying of the extreme anti-gay is pushing more of the neutrals into tolerance if not outright pro-gaiety.

I would even suggest that a President Santorum would trigger more pro-gay social change as a counter-reaction than the nominally not-anti-gay president we have now.

I guess that is an optimistic take on it.

How exactly would this turn of events go?

 

[JoeTheJuggler]

I'm not talking about federal marriages, or marriage done in the military.

I realized that shortly after I posted. (In the previous conversation I had on DOMA, someone said that DOMA didn't raise a FF&C clause issue but was only concerned with federal marriage. Just a matter of reading the text to clear that up, but I think that's why I was focusing on federal marriages in the military--like overseas.)

I was initially thinking along the lines of a GI stationed in Hawaii who gets married with a HI license, then they get transferred to Mississippi and try to deal with that state as a married couple... say using the dependent's ID card to get a driver's license, or filing state taxes jointly, make a will, or registering in school, etc.

I think that if someone wanted to make a test case, that would go right through the state courts to the federal bench.

Oh I see what you mean. It's still a full faith and credit clause argument, but being military would just get it out of state court.

I hadn't considered that a big thing since there are already a bunch of cases, many already in federal courts. It's a federal law AND a constitutional question, so there's no problem of showing a federal interest.

BTW, for those who think the Obama administration is acting too passively, the DOJ not only didn't defend DOMA in one of these cases (Golinski v. Office of Personnel Management--another case of spousal health benefits), in July of last year it filed a brief in support of the plaintiff arguing against DOMA and pointing to "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities".

 

[crimresearch]

I realized that shortly after I posted. (In the previous conversation I had on DOMA, someone said that DOMA didn't raise a FF&C clause issue but was only concerned with federal marriage. Just a matter of reading the text to clear that up, but I think that's why I was focusing on federal marriages in the military--like overseas.)



Oh I see what you mean. It's still a full faith and credit clause argument, but being military would just get it out of state court.

I hadn't considered that a big thing since there are already a bunch of cases, many already in federal courts. It's a federal law AND a constitutional question, so there's no problem of showing a federal interest.

BTW, for those who think the Obama administration is acting too passively, the DOJ not only didn't defend DOMA in one of these cases (Golinski v. Office of Personnel Management--another case of spousal health benefits), in July of last year it filed a brief in support of the plaintiff arguing against DOMA and pointing to "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities".

Pointing that out is significant, establishing a pattern of discrimination carries some weight with the Supremes.