Breaking Obama decides DOMA is unconstitutional Orders Justice Dept To Stop Defending (CONFIRMED!!!)

[kpete]

Source: Talking Points Memo

Breaking

Obama decides DOMA is unconstitutional and orders Justice Department to stop defending it in court. More soon ...




Read more: http://www.talkingpointsmemo.com/archives/2011/02/breaking_45.php?ref=fpblg

---

UPDATE:
Breaking News: Obama action against DOMA coming
By Jonathan Capehart

A well-placed and trusted source tells me that, any minute now, Attorney General Eric Holder will issue a statement announcing that it will no longer defend so-called Defense of Marriage Act lawsuits in court. The source believes DOJ had come to the conclusion that heightened scrutiny would apply, and that these cases cannot be defended in court. A 530d letter has been sent to Congress informing it that, if it wants to defend the statute, it is free to do so. A case is pending now that has a filing deadline of March 11.

This is huge, folks. By definitively stating that gay men and lesbians deserve heightened scrutiny, the Obama administration is declaring that there is no government interest in perpetuating the discrimination aggrieved parties are trying to redress.
http://voices.washingtonpost.com/postpartisan/2011/02/big_news_on_doma_coming.html


SORRY BUT I AM GOING TO POST THE WHOLE THING!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Here it is:

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act
http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

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. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

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.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

http://www.goodasyou.org/good_as_you/2011/02/report-obama-admin-will-no-longer-defend-doma.html

[xchrom]

1. god i hope so. nt

[joeybee12]

2. TPM isn't all that reliable....

and there is no article or anything at all to back it up.

[Pacifist Patriot]

6. Still rumor, but...

http://voices.washingtonpost.com/postpartisan/2011/02/big_news_on_doma_coming.html

[roguevalley]

93. If so, then congratulations to all it might affect. God bless all of you.

[gateley]

103. That's so sweet! nt

[shraby]

9. I've been reading TPM for many years and find them

very reliable! Josh Marshall is great.

[Wait Wut]

58. Agreed.

I've been there for a couple of years. Josh is pretty thorough in his reporting and when he is mistaken, apologizes (and grumbles). I also like the fact that they don't automatically ban Conservatives from the comments. I've had some good debates there. If the opposition behaves like an adult, they're treated as one.

Doesn't happen on most left or right wing sites.

[Raster]

77. Indeed! There are times Josh is one of the few voices with an accurate perspective.

I'd trust a "rumor" from TPM anyday over something confirmed from the corporate-controlled ma$$ media.

[LynneSin]

20. Here it is at the Washington Post

http://voices.washingtonpost.com/postpartisan/2011/02/big_news_on_doma_coming.html

[chill_wind]

51. Painting TPM as unreliable? Why do you say that?

[boppers]

131. Well, the article doesn't accurately reflect the statements made by the DOJ.

They will continue to argue in favor of DOMA in circuits where there is binding precedent.

[chill_wind]

140. *I was referring to what sounded like a general premise

or broad brush about TPM. Nobody's perfect, and especially nobody's breaking headlines ahead of a full story are always perfect, but TPM has generally been excellent. Glad they were among the first to get word.

[No Elephants]

159. Precedent Holder's D of J helped set, by arguing that homosexuality is like bestiality and incest.

No wonder they won't wake that sleeping dog. However, how does one rationalize having people sworn to defend and protect the Constitution defending and protecting a law THEY now say is in derogation of the Constitution, even in one Circuit? And what about equal pro. of the laws? Sine when does that vary from Circuit to Circuit?

[msanthrope]

199. Do you have a cite to back that statement up? Or is that hyperbole?

Now, to answer your question, if a court orders the DOJ to reply in a DOMA case, using rational review, they are obligated to do what the court orders.

As Holder's letter CLEARLY outlines, that is the scenario under which a putative DOMA case would be 'defended'. Would you have the DOJ defy the judiciary?

[msanthrope]

198. Your statement does not accurately reflect the DOJ's position. You are incorrect.

At the close of the letter to Boehner, Holder indicates that ALL DOMA cases will be handled by the DOJ as if heightened scrutiny applies. If, however, the court itself demands rational review, then the DOJ MUST follow the order of the court.

http://www.talkingpointsmemo.com/documents/2011/02/letter-from-the-attorney-general-to-congress-on-litigation-involving-the-defense-of-marriage-act.php?page=6

[Skinner]

3. FUCKIN' A!!!!

:thumbsup:

[lonestarnot]

41. Hey! That's mine!

}( and I'm afraid to bounce yet! :scared: 1/2 :bounce:

[Pacifist Patriot]

4. I really hope this is true.

[pnwmom]

64. It is true. This is their position. n/t

[Renew Deal]

5. This is probably how DADT would have gone if Obama didn't have the votes to repeal it.

The DADT is clearly more cut and dry than this. But this works.

[Better Believe It]

89. So why did President Obama insist he had to defend DADT in the courts? He didn't have to.

[Renew Deal]

121. From what I'm reading...

There's some legal issue about DADT surviving several court cases, where the part that was struck down hasn't been litigated. Not sure what it all means, but the outcome works (for now).

[msanthrope]

201. DADT was found constitutional by an appellate court, only 2 years ago.

Repeal was necessary because the underlying 'findings' of the law--that homosexuality was inimical to unit cohesion--were found to be unchallenged (this is the part that was never fully litigated.)

Judicial scrutiny cannot overturn the findings of Congress on a whim. One must have some basis for disagreeing with the conclusions of the legislative branch.

Thus the surveys. Once the underlying 'finding' was challenged, DADT's reason for existing no longer existed. Repeal saved years of judicial bickering.

Here, in DOMA, you have ongoing litigation--what the DOJ is saying however, is that unless forced to use rational review, the DOJ has no argument.

DOMA's dead.

[fasttense]

183. This sounds good on the surface but what did Obama give up?

The last time we had a repeal of bigoted, unfair policy (established under Clinton), we gave the billionaires another tax cut and ensured our federal budget deficit would continue for years to come.

What did Obama give up this time?

I know this is not like the repeal of DADT because it did not have to go through congress, but it just seems to me that Obama uses these social issue successes to hide big give aways to the oligarchy.

[No Elephants]

157. Pure speculation.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=4363164&mesg_id=4363698

[maddezmom]

7. excellent news!!!

K&R

[MineralMan]

8. May it be so!

[X_Digger]

10. Hot Damn! BIG K&R!! n/t

[Initech]

11. Obama - 1, Fundies - a big, fat, fucking ZERO!!

:woohoo:

[crim son]

12. Cautiously hopeful. Obama was also going to support

the reprimand against Israel one day but the next, he wasn't.

[No Elephants]

160. A cynic might say re-election explains the "evolution" of his thinking on both issues.

[MineralMan]

13. Thanks for the confirming update!

Good news, indeed!

[NuclearDem]

14. Whoa whoa whoa...did our president just become a liberal overnight?!

:evilgrin:

[Recursion]

38. No, Internet forums just have the attention span of a hummingbird on Adderal (nt)

[Fearless]

70. Umm... that would be a pretty long time wouldn't it?

[Recursion]

74. OK, a hummingbird off their Adderall

I mostly see people who don't need it use it, and it makes them bounce of the walls (gives the condition it cures in others, oddly).

[datadiva]

15. Just announced it on MSNBC! n/t

[Solly Mack]

16. K&R

[struggle4progress]

17. The unconstitutionality of DOMA should be a slamdunk, based on the full faith and credit clause.

But, of course, it is less clear how our judiciary (still packed with rightwingers) will stand on the issue

And, unfortunately, the current political map still shows a preponderance of states restricting gay marriage. Perhaps DOMA has been something like a firebreak against further restrictions in various conservative states, and so the fall of DOMA might lead to a flurry of further anti-equality constitutional amendments in the states

With DOMA gone, I might expect a decade of political and legal fights about the state-level laws

[jberryhill]

Those state-level fights are where it belongs

States differ on marriages of first cousins, too, and nobody has ever had a problem with cousins getting married in states which allow it.

[No Elephants]

161. +1 No one repealed the 9tih and 10th amendments. Marriage, adtoptions, wills,

etc. were always purely state issues, until DOMA (another gem we can thank "liberals Dems under Clinton for helping vote in and DLC co-founder Clinton for signing).

[msanthrope]

197. Not true--marriages, adoptions, and wills might have been regulated

based on state law, but the underlying right to these actions of well-ordered liberty has always been a FEDERAL matter.

You are conflating police/administrative functions with fundamental rights.

[ieoeja]

60. Sure. As you long as you ignore the fact that the Constitution gives Congress the power to regulate

... full faith and credit. But if you don't ignore that Constitutional power granted to Congress, then it is equally a slamdunk that the law is *not* unconstitutional under that clause.

It is unconstitutional because it discriminates against human rights. But it is not unconstitutional for executing a power that the Constitution explicitly grants Congress.

[struggle4progress]

76. Constitution. Article IV. Section I:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State

For example, if you marry in Massachusetts, divorce in Nevada, and remarry in Iowa, you will not encounter the problem that Pennsylvania recognizes your first marriage but not your divorce and remarriage, nor will Florida prosecute you as a bigamist because it recognizes both your marriages but not your divorce: everybody accepts that you were married, divorced, and remarried

[ieoeja]

81. Constitution. Article IV. Section I. ***Unedited***

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

[No Elephants]

164. .....

Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved,

Meaning, how you prove something in court.

If I have a child support order from MO, but my defiant spouse lives and works in Nevada, I have to get a Nevada court to issue on order attach his wages or liening his home or bank account or whatever.

So, how do I prove to a Nevada court that the document I am claiming is a valid child support order from MO issued for my benefit and not something I concocted on my word pro. and had my neighbor sign? And I did not defraud the MO court?

The proof bit is what Congress gets to regulate.

[ieoeja]

195. "and the effect thereof."

And 1738C certainly addresses the effect of a same-gender marriage from another state having been proven.


You know, I posted earlier that I had changed my mind. Because this allows one State to modify another State's action with that modification applying only to the state in which the modification occurs. So the first State's action is exempted by the second State's action which is also exempted. This doubly erodes the constitutional clause in question.

But, as already stated, it does clearly address the effect of a same-gender marriage. Previously I got caught up in my own flawed analogy rather than considering it separate from that analogy. So I am back on the fence now. But leaning towards unconstitutional. The double erosion and outright nullification of Full Faith and Credit keeps me leaning that way.

See what deceitful editing does? You do more harm than good when you try cheating.

[No Elephants]

173. I wish. Please see Reply 166.

[struggle4progress]

224. Williams v North Carolina: 317 US 287 (1942)

Petitioners were tried and convicted of bigamous cohabitation ... Petitioner Williams was married .. in 1916 in North Carolina and lived .. there until May, 1940. Petitioner Hendrix was married .. in 1920 in North Carolina and lived .. there until May, 1940. At that time, petitioners went to Las Vegas, Nevada and on June 26, 1940, each filed a divorce action in the Nevada court ... In the case of defendant .. Hendrix, service .. was had by publication of the summons in a Law Vegas newspaper and by mailing a copy of the summons and complaint to his last post office address. In the case of defendant .. Williams a North Carolina sheriff delivered .. in North Carolina a copy of the summons and complaint. A decree of divorce was granted petitioner Williams by the Nevada court on August 26, 1940 ... The Nevada court granted petitioner Hendrix a divorce on October 4, 1940 ... Thereafter, they returned to North Carolina, where they lived together until the indictment was returned. Petitioners pleaded not guilty ... The State contended that, since neither of the defendants in the Nevada actions was served in Nevada nor entered an appearance there, the Nevada decrees would not be recognized as valid in North Carolina. On this issue, the court charged the jury in substance that a Nevada divorce decree based on substituted service where the defendant made no appearance would not be recognized in North Carolina ... The Supreme Court of North Carolina, .. affirming .. judgment, held that North Carolina was not required to recognize the Nevada decrees under the full faith and credit clause of the Constitution ... Chief Justice Marshall stated .. "the judgment of a state court should have the same credit, validity, and effect in every other court in the United States which it had in the state where it was pronounced, and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the United States." That view has survived substantially intact ... Some exceptions have been engrafted on the rule laid down by Chief Justice Marshall. But .. "the room left for the play of conflicting policies is a narrow one" ... This Court .. has recognized that in case of statutes, "the extrastate effect of which Congress has not prescribed," some "accommodation of the conflicting interests of the two states" is necessary ... But that principle would come into play only in case the Nevada decrees were assailed on the ground that Nevada must give full faith and credit in its divorce proceedings to the divorce statutes of North Carolina ...
http://supreme.justia.com/us/317/287/case.html

[struggle4progress]

100. The standard interpretation of the second sentence is illustrated by 28 USC 1738,

which lays out methods of proof:

TITLE 28 ... § 1738. State and Territorial statutes and judicial proceedings; full faith and credit

The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken

http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00001738----000-.html

The intent of the second sentence is not that Congress may decide, issue by issue, what merits "full faith and credit" and what does not merit it, but that Congress may establish standards of proof and may further clarify if necessary exactly what "full faith and credit" means

[ieoeja]

124. You have an argument. Don't know if I agree with it yet.

1738A - defines conditions in which a State may modify another State's child custody decisions.

1738B - same thing regarding child support.

1738C - DOMA section 2. Which lays out conditions in which a State may modify another State's marriage for same-gender couples.

The differences are (1) the conditions in 1738C are much broader and (2) discriminates. 1738A and 1738B apply to everyone equally. 1738C applies only when the couple are the same gender.

I still think it passes the Full Faith and Credit test, but you do have a valid argument.

[No Elephants]

165. Full faith and credit has always had a public policy exception.

http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause

http://en.wikipedia.org/wiki/Conflict_of_laws


Besies, has the Constitutionality of the provisions you gave ever been tested in court? If not, it's very possible Congress exceeded its authority, insofar as it purports to mandate how state courts must decide (as opposed to "may"). (Of course, Congress does have considerable power over federal courts.)

[ieoeja]

193. Actually, my comparison has a big flaw that occurred to me last night.

1738A and B defines conditions under which one state may modify something originated in another state. That modification itself now applies to all states under the Full Faith and Credit clause.

Conversely, the 1738C "modification" applies only to the state in which the modification occurs. That would be like my Illinois divorce meaning the wife I married in Indiana is no longer my wife in Illinois, but is still my wife in Indiana. That (and 1738C) is nothing short of overruling the Full Faith and Credit clause. Which should be unconstitutional.

So I have changed my opinion on this argument. I believe 1738C is unconstitutional.


Of course, your point is still valid about whether 1738A/B have ever been challenged. I am just now of the opinion that it doesn't matter, because my originally analogy was wrong.

And I'd still love it if someone could show me that my divorce is constitutional!

:)


And the big postscript. This subthread is a tangent to the OP wherein the Obama administration declared section 3, not section 2, of DOMA to be unconstitutional.

[No Elephants]

222. I will take your word for it!

[No Elephants]

163. The Constitution does not gives Congress the power to regulate

full faith and credit. There's nothing to "regulate" anyway. Either full faith and credit is given, or it isn't.

State and federal courts enforce it.

[jmowreader]

126. The full faith and credit clause makes those anti-equality amendments unconstitutional

The right loves the little "God created Adam and Eve, not Adam and Steve." So let's see here: Adam Smith and Eve Jones can get married in Massachusetts, move to Idaho and have their marriage be considered completely legitimate under the full faith and credit clause. But if Adam Jones and Steve Smith got married in Massachusetts then moved to Idaho, their marriage would be considered invalid.

As much as the teabaggers claim to love the Constitution, there are certainly parts of it they despise--like the full faith and credit clause, plus the 14th, 16th, 17th, 19th and 21st Amendments.

[No Elephants]

166. Sadly, no. Please see Reply 166. However, the Equal Pro. Clause, in

combination with the Supremacy Clause, IMO, does invalidate them. See Loving v. Virginia. Scalia has already said no, though. So, everything will prolly depend on Kennedy.

[pinto]

18. Kick

:woohoo:

[bear425]

19. Wow! I hope this is really true.

My partner and I are planning to go to Mass. to get married this summer. I hope this will make it official nationwide, as it should be.

[frazzled]

28. Congratulations, and I hope your wedding is all you hope and dream of

I do want to warn that this is very probably a first step in an "orderly" unraveling of DOMA, not the panacea that will overturn it right away in this Congress (or even the Supreme Court). This is a legal position, and with each step progress is made moving forward. Public opinion moves forward every day in accepting gay marriage, and I have no doubt that one day, our federal laws will reflect that.

In the meantime, mazel tov!

[bear425]

34. Thank you!

Yes, I won't be holding my breath that our union will be recognized, especially in Florida. I'm sure it will take quite some time. One day, however, we will be viewed equally, at least in the eyes of the law. Again, thanks for the good wishes!

[No Elephants]

168. Sadly, no, you still have to go to a state that will give you a license.

However, Massachusetts (my current home) would love to have you (and I'll leave a light on for ya).

Cape Cod? If so, lovely in summer, though crowded. Weather in July is usually as reliable sunny as weather gets here. August somewhat less so. Usually lovely in September, too.


Meanwhile, HOW EXCITING!
Please accept my very for a lovely wedding and a great marriage.

(Sorry. Can't help myself. I'm mushier than I probably seem.)

[bear425]

184. Thanks! I love all the emoticons!

We are thinking of staying in P-town, but not during an event weekend. We had better make plans soon, though! September might be the best time for us. Again, thank you! :hug:

[No Elephants]

186. You're welcome. If you have any questions, please feel free to pm. I'll do my best.

Or, you could try posting in the Massachusetts forum.

Again, all my best for your wedding and marriage.

[mediator]

21. I'm guessing this will not please the Prop 8 proponents

:evilgrin:
K&R!!

[No Elephants]

175. Let's hope not!

:evilgrin:

And welcome.

All kidding aside, though, the right is going to put up a very serious fight on this, backed by big, big bucks.

[Hell Hath No Fury]

22. If this is true --

fantastic news. :applause:

[bluestateguy]

23. But, but, Obama is just like Bush!!!!!

nt

[Democat]

35. He's worse, haven't you heard?

At least Bush didn't pretend to be a liberal. :eyes:

[MNBrewer]

71. So much for all the apologists who just SWORE that he had to defend DOMA

because he was required to. Those of us who pointed out that his defense of DOMA was by his choice have just been proven correct.

[laconicsax]

122. +1000

[boppers]

132. Both arguments are in the statement.

They have to continue to defend it in some circuits, but not in others.

[No Elephants]

162. No, they don't have to. They never had to, but always said they had to. Au

contraire, the Executive has a Constitutional duty NOT to defend an unconstitutional law, whether directly or through his agents.

See also Reply # 160.

[msanthrope]

205. Yes. They DO have a duty to defend DOMA, as the courts order.

I suggest you read the letter, carefully.

DOMA is completely and utterly defensible under rational review. It is not, under heightened scrutiny.

Either way, the DOJ is obligated to respond to the court. That's how the system of democracy works.

[msanthrope]

203. Actually, he DOES have to defend DOMA, as the Holder letter points out.

The US remains a defendant in all cases. How it will be defended is the issue.


I suggest you read the letter carefully, particularly the last page.

http://www.talkingpointsmemo.com/documents/2011/02/letter-from-the-attorney-general-to-congress-on-litigation-involving-the-defense-of-marriage-act.php?page=6

[MNBrewer]

214. There's a difference between

being a "defendant" and "Defending" the law. They could have, so to speak, pleaded "no contest", in which case they're still a defendant, but not defending.

[msanthrope]

216. Well, it's a little more complex than that.

Depending on the scrutiny level used, DOMA is defensible. That's the point most posters on this thread have missed.

It's a horrible law, without a doubt. But under rational review, it is defensible, if vomit-inducing.

Holder cannot reasonably shirk his duty under rational review.

[MNBrewer]

217. It appears they have decided that is not the test that should be applied

FINALLY!

[msanthrope]

219. Well, Holder doesn't set the scrutiny level. The courts do.

I agree with holder that the scrutiny level should be heightened. I think that is logically sound, and consistent with Lawrence.

HOWEVER, no one has ever clarified exactly what the scrutiny level for gay persons is--so the courts have little guidance.

[MNBrewer]

221. The Administration chooses what level of scrutiny they will claim should be applied

[msanthrope]

225. Yes, but the court decides what applies.

If a court tells you you are briefing on 'x' that's what you are briefing on.

[No Elephants]

171. Well, for 2 years, his D of J has been equating homosexuality with

bestiality and incest. I don't think even Gonzo did that.

And, AFAIK, every other position taken in court by his D of J has been identical to the positions taken by Bushco.

Plus, Gitmo is still open, as is Bagram, and "extraordinary" rendition continues.

Meanwhile, primary wars time is almost here. And 2012 will be harder than 2008. We really cannot afford to have any minority sneaking out from under the back of the "Big Tent. We don't want gays going Green again, as many did in 2000, after being disappointed by Bubba's DADT and his signing of DOMA.

But, I'm sure that's all purely coincidental. Axelrod and the rest of the re-election effort probably had nothing at all to do with the evolution in Obama's thinking on this issue from a few months ago.

But no, you're right. Obama's not just like Bush. I just wish there were many more significant differences. And we sorely n needed an FDR or an LBJ, or better, not someone who is better than the. worst. President. ever. in some significant ways.

[msanthrope]

206. Do you have a cite for that charge? You keep repeating it, and yet you never provide the quote.

And fyi, there's not a single serious primary challenger to the President. Nor will there be.

[Uncle Joe]

24. Kicked and recommended.

Thanks for the thread, kpete.

[Name removed]

25. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[Ozymanithrax]

You may the right decision, Mr. President...

I commend you.

[DesertDiamond]

26. I so hope this is true!

[stevenleser]

27. And yet again this President makes me feel good about supporting him. n/t

[Iliyah]

32. See ya

I truly believe he wanted first for congress to repeal "don't ask - don't tell", then proceed.....

The President could have should have two years ago BUT I believe he wanted to go the procedural way where it would be harder to fight against.

[HighLowRoller87]

155. That's EXACTLY what he wanted to do

It became clear to me after noticing all of these appeals and overturns in different states. Having it be federal means it will stop somewhere if they want to take cases to federal courts. Very strategic move after I thought about it.

[No Elephants]

176. Repealing a law of Congress is not all that hard. And repeal of DADT

was no more procedural than an Executive Order would have been.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=4363164&mesg_id=4363698

Sometimes, letting sleeping dogs lie is wisest.

[kpete]

29. with this post

i take a deep breath,
realize that patience has not been my best virtue...

i am straight but love has no sexual orientation.

a come to obama moment for me

off to the woods for a walk

love, peace and __________
kpete

[No Elephants]

178. KPete, you are never thanked nearly enough or often enough. What would LBN be without

all your great threads?

THANK YOU!

[midnight]

30. Good. Nice to know that our Federal Laws won't be used to discriminate....

against persons that don't fit the purity definition via some narrow minds...

DOMA) defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize a marriage from another state if it is between persons of the same sex. 37 states have their own Defense of Marriage Acts (DOMAs), while 2 more states have strong language that defines marriage as one man and one woman. There are 30 states that have constitutional amendments protecting traditional marriage, including the three states (Arizona, California, and Florida) that passed constitutional amendments in November 2008.http://www.domawatch.org/circuitissues/index.html

[polmaven]

43. Y'know.....Something I have never understood -

In those states with constitutional amendments "protecting traditional marriage", from what, exactly, what are they "protecting" it?????? :shrug:

Does anybody know? I never get an answer from anyone I ask when s/he has said it?

[swimboy]

145. You will never get an answer to that.

It's a nonsensical statement. They can't explain how allowing marriage equality will somehow simultaneously affect no individual marriage and all marriages. They just like the way it sounds.

[No Elephants]

179. The law is still on the books and D of J will even still defend it in some Circuits.

I think the IRS will still have to honor it, and so on.

[Divine Discontent]

31. now THAT is good news! keep it coming Mr. President!

:woohoo: :bounce:

[Democat]

33. But according to many on DU, there is no difference between Bush and Obama!

What happened?

[muriel_volestrangler]

36. process questions: "Members who wish to defend the statute may pursue that option"

which sounds, to a non-American non-lawyer, like any member of Congress can, if they wish, become the defending party, and continue the legal process. And I'd fully expect some Republicans to want to do that (and they'll get the funding for it too - eg the churches who poured money into the Prop 8 propaganda push). Is there anything that can be done to speed up the process of appealing this through the levels of courts, so that it gets to the Supreme Court so that it can be declared unconstitutional? Does the DOJ opinion that it's unconstitutional help?

[jberryhill]

42. If they can establish standing to do it

Either that or the wingnuts will do anything up to an impeachment resolution on the basis that Obama is failing in his duty to uphold the law.

The timing suggests that the message here is "bring it" as long as the RW is cutting its throat in Wisconsin at the same time.

2012 is shaping up to be a major knockout of the far right.

[Ikonoklast]

87. That guy with the funny name and big ears living at 1600 Pennsylvania Avenue

in Washington, D.C., just might be a little better maneuverer than he gets credit for.

Underestimate him at your own political peril.



Thank you, President Obama, for doing the right thing with all deliberate speed and consideration.

[jberryhill]

96. An impeachment proceeding would be the nail in the coffin

The last thing the electorate wants is another one of those sideshows.

[No Elephants]

177. Do you know off the top of your head who gets sued over DOMA? Who are the defendants?

(Not asking you to do my googling for me.)

[msanthrope]

210. Two likely candidates--Issa and Lamar Smith.

Last year, Lamar asked for intervenor status on two DOMA cases, arguing that the DOJ would not defend them properly. Well good for Obama--this should tie up House Judiciary. If they call Holder in front of HJ for a public spanking, and I suspect Smith has painted himself into a corner on this one, then that should be fun.

Now, Issa may start investigating. But he's Dan Burton, without the watermelon. And he's from CA. I don't think he wants to touch 'gay issues.'

Obama is lucky in his enemies.

[BlueDemKev]

Now, to all of you.....

....who've been saying for the past two years that Obama is only a Democrat in name, but acts like a Republican......

What do you have to say, now? Look at Boehner, Cantor, McConnell, Palin, Walker, Bachmann and compare them to Obama. Don't know about you, but I don't QUITE see the resemblance! ;-)

[namahage]

68. Take a look around.

They are saying nothing, which says a lot.

[FreeState]

92. I dont see anyone apologizing to the GLBT community either

Many Obama supporters have told us he had to defend the law, there was no way around it. We were told we were whining over and over again for saying he did not have to defend the law.

I have never said Obama was not a Democrat either, so Im not in that position to respond to that.

[jberryhill]

97. Oh, mark this - there will be quite the foofaraw over this decision

Holder is going to be dragged before the House Committee For Making Republicans Look Silly And Mean and, if we are lucky, those nitwits will draft articles of impeachment over it.

The timing here is based on momentum and political capital to the point where those kinds of actions will backfire on the GOP.

[FreeState]

110. Agree - but I doubt they will make much of it until 2012

they have little of anything to gain, outside of fundraising, by attacking it now. By 2012 they will try and attack Obama for it, however, I doubt it will work - by then trends show over 50% will support marriage equality, all it will do is rial their base which will be there anyway.

[Jmaxfie1]

113. Hopefully they will over react like they always do and make a fool of themselves n/t

[msanthrope]

207. He does have to defend the law. He can't not respond to a court order.

The only difference here is that Holder is pre-emptively telling Congress that under heightened scrutiny, which he believes should be applied, there is no reasonable defense of Section 3.

But if a court orders rational review, the DOJ is obligated to make the case.

[No Elephants]

213. No, he doesn't have to defend the law. And what court order are you referring to?

A court has no authority to order anyone to defend anything, let alone the AG. Besides, read the OP. He is saying he will NOT defend DOMA. How can he possibly say that if what you're saying is so?

Hint: Something can be posted on DU 5,000 times without a cite to a authoritative source and still be wrong He does not have to defend the law and he takes orders from Obama. If people don't get that the OP proves that, I have no idea what goes on in their minds.

[msanthrope]

215. Read the actual letter. Page 6.

Actually, you should read the whole thing.

http://www.talkingpointsmemo.com/documents/2011/02/letter-from-the-attorney-general-to-congress-on-litigation-involving-the-defense-of-marriage-act.php?page=6

Yes, courts do have the authority to order a defendant to answer. When the federal government is a defendant, then yes, they must answer.

The court has no authority to order anyone to defend anything???? That is a fundamental misapprehension of the judicial system. Yes. The courts DEFINITELY have the authority to compel--that's why 'contempt' was invented.

When the federal government is not a named defendant, but is called on by the court to opine on US legislation, that is an order. It is politely called an 'invitation' but it is nonetheless an order to the Solicitor General's office.

As Holder's letter clearly outlines on page 6, DOMA will be defended. It is HOW it will be defended that has changed.

If a court accepts the DOJ's suggested scrutiny level, then the DOJ will will declare section 3 unconstitutional in argument.

However, if the court so orders rational review, the DOJ must and can defend DOMA. If a court orders a standard of review, the DOJ is stuck with it.

NOW, you have repeated a specific charge against Mr. Holder, and I would like a direct cite to it.

[No Elephants]

191. You must have read a different thread than I did.

Btw, ever notice who's missing from threads reporting not so great things about Obama?

[namahage]

69. Dupe

[No Elephants]

180. Well, I never said Obama was a DINO, but please see Reply 172--and

Reply 172 does not even hit the wars, the economic issues, the environmental issues, fighting FOIA requests and so on.

Hey, you asked.

[Jankyn]

37. Just got the press statement from the DOJ...

...and it's for real.

[Plucketeer]

39. I'm happy about this.

It's what's proper in an enlightened society. Trouble is, that's not the sort of society that's predominant in this country. Slap on the back for Obama, but I want to see this same bravado for the many promises he's seemingly forgotten.

[Liberal_Stalwart71]

40. From New York Times...

Justice Department to Stop Defending Federal Law on Gay Marriage

President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act - the 1996 law that bars federal recognition of same-sex marriages - against lawsuits challenging it as unconstitutional.

Attorney General Eric H. Holder Jr. on Wednesday sent a letter to Congress to inform them that the Justice Department will now take the position in court that the Defense of Marriage Act should be struck down as a violation of gay couples' rights to equal protection under the law.

"The President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law" a crucial provision of the Defense of Marriage Act is unconstitutional, Mr. Holder wrote.

Read More:
http://www.nytimes.com?emc=na

[SkyDaddy7]

44. Thank-you for posting and...

Especially THANK-YOU President Obama!!

[florida08]

45. Holy chit kpete

ABC reporting it too. WOW!

http://blogs.abcnews.com/politicalpunch/2011/02/president-obama-instructs-justice-department-to-stop-defending-defense-of-marriage-act-calls-clinton.html

[Scurrilous]

46. Good news.

K & R :thumbsup:

[barbtries]

47. this president

is one hell of a mixed bag isn't he?
this is good news - good news indeed.

[elleng]

48. Excellent!

[Glorfindel]

49. Oh, joy...I'm in tears, but tears of happiness!!

Thank you for posting this!

[Name removed]

125. Deleted message

Message removed by moderator. Click here to review the message board rules.

[swimboy]

146. Yeah!

:toast:

[Arkana]

50. Whoa wait what who now what happened?

[Hawaii Hiker]

52. Can i get a blue woo-hoo

:woohoo: :woohoo: :woohoo:

[Tx4obama]

107. You betcha!

:woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo: :woohoo:

[JDPriestly]

53. Loving v. Virginia

Loving v. Virginia, 388 U.S. 1 (1967)<1>, was a landmark civil rights case in which the United States Supreme Court, by a 9-0 vote, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States.

. . . .

The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:

“ Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
”
The Supreme Court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:

“ There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

http://en.wikipedia.org/wiki/Loving_v._Virginia

And for the decision itself,

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html

God bless Chief Justice Earl B. Warren. May he rest in peace. And wherever he is, thank you, Justice Warren.

Chief Justice Warren was an old-time Republican. He would turn over in his grave if he saw the likes of Justices Scalia, Thomas, Alito and Roberts. They are not made of the same moral fiber as Warren, not at all. They don't share his sense of human worth or of justice.

Earl Warren (March 19, 1891 – July 9, 1974) was the 14th Chief Justice of the United States Supreme Court and one of only two people to be elected Governor of California three times. Before holding these positions, Warren served as a district attorney for Alameda County, California and Attorney General of California. He is best known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending school prayer, and requiring "one-man-one vote" rules of apportionment. He made the Court a power center on a more even base with Congress and the presidency especially through four landmark decisions: Brown v. Board of Education (1954), Gideon v. Wainwright (1963), Reynolds v. Sims (1964), and Miranda v. Arizona (1966).

As governor of California, Warren was a very popular Republican and popular across party lines, so much so that in the 1946 gubernatorial election he won the nominations of the Democratic, Progressive, and Republican parties and was reelected virtually without opposition. His tenure as Chief Justice was as divisive as his governorship was unifying. Liberals generally hailed the landmark rulings issued by the Warren Court which affected, among other things, the legal status of racial segregation, civil rights, separation of church and state, and police arrest procedure in the United States. In the years that followed, the Warren Court became recognized as a high point in the use of judicial power in the effort to effect social progress in the United States. Warren himself became widely regarded as one of the most influential Supreme Court justices in the history of the United States and perhaps the single most important jurist of the 20th century.

In addition to the constitutional offices he held, Warren was also the vice-presidential nominee of the Republican Party in 1948, and chaired the Warren Commission, which was formed to investigate the 1963 assassination of President John F. Kennedy.

http://en.wikipedia.org/wiki/Earl_Warren

I have always been a staunch Democrat, but back in the days when there were Republicans like Earl Warren, a Democrat could negotiate with the other side and everyone won.

We shall see how the current Supreme Court tries to wriggle out from under the righteous cloak of Chief Justice Earl Warren's decision, Loving v. Virginia.

[RidinMyDonkey]

54. What exactly has changed?

I'm just not sure what it means to 'stop defending' It doesn't sound like it is the same thing as legalizing SSM. It doesn't anywhere specifically state that the ban on same sex marriage will end. I take it a gay man still can't grab his partner and go get a marriage license. Obviously it is a good first step but where are we now?

[pnwmom]

63. This is a major step. There are a number of lawsuits currently in the courts

that are attempting to overturn DOMA, and this means that the government won't be defending the law anymore in Court. In fact, the government has now taken the opinion that DOMA is unconstitutional. This should have a major impact on these cases.

Obama couldn't do more than this. He can't force Congress to repeal the bill, but he can help the Courts to overturn it.

[No Elephants]

181. he is not promising to help courts to overturn it. He's saying only

that, in most Circuits--not all--he will stop urging them to uphold it. That's not the same thing.

And he can do more. He can urge all Circuits to invalidate it. Not to mention, he had a good while before January 2011 to ask Congress to repeal it.

[msanthrope]

211. You are incorrectly stating the DOJ position. As the Holder letter points out,

where rational scrutiny is applied by the court, the DOJ must comply with court order.

Elsewhere, with heightened scrutiny, section 3 is not defensible.

Holder is OBLIGATED to follow the order of the courts. He doesn't make up the level of scrutiny. The courts do.

[Arkana]

104. It's not legalizing SSM in all 50 states...unfortunately, some states

have already passed laws outlawing it.

What it MIGHT do, however, is return us to full faith and credit: meaning that if you go to Massachusetts as a gay couple and get married and move back to Texas, your marriage has to be recognized under federal law.

[bluestateguy]

116. In the 5 states where gays can marry legally

Those married couples may now file federal tax returns as married couples if they so wish.

[DeSwiss]

55. K&R

- I guess it just takes longer for law professors to figure things out that are illegal than I do. Now about marijuana.....

[bowens43]

56. How is this good news?

The president saying that something is Unconstitutional does not make it Unconstitutional. The only way that this issue can be settled is in the courts. President Palin will undoubtedly declare it Constitutional and we're right back where we started.

Same thing with DADT, legislation isn't good enough. It has to be declared Unconstitutional by the Supreme Court before it's really over.

[melm00se]

169. winner winner

chicken dinner

quick opinion check on myself:

Do I think DOMA is unconstitutional? Yes
Is it a dumb law? yes
Is it discriminatory? yes

While the president does have direct control over the DOJ he DOES NOT have the ability to unilaterally declare a law or program unconstitutional once the bill has been signed into law that is under the purview of the Judicial Branch.

If someone were to challenge his actions in court (refusing to enforce a duly passed law), the court could very well direct the DOJ (and thus the president) to enforce that law. If the Executive branch declines to do so, especially if the President comes out and says specifically not to, they could be found in contempt of court which could then be grounds for removal from office.

Remove DOMA from the equation for a second and pick another law (one with which you agree) and imagine if a Republican President were to declare that as unconstitutional (especially if there is Constitutional provision allowing for this law to go into effect).

I believe that you (and much of DU) would be up in arms.

[No Elephants]

188. Where did he say he will be refusing to enforce any law? And, yes, he

can say a law is unconstitutional. So can I. So can you. He cannot unilaterally invalidate a law. However, he is not purporting to do that.

Why should anyone be "up in arms" bc the President of the United States said gays have the same Constitutional rights to Equal Protection of the laws as much as I do? As Mr. and Mrs. Loving had?

[No Elephants]

182. Congress can repealed DOMA, but probably won't. Scalia has already said

what he thnks, so it may come down to Kennedy.

[SoapBox]

57. Cool!

[katty]

59. this is a really big deal--extremely disturbing turn of events

[ieoeja]

62. Disturbing?

[katty]

82. yes, but perhaps Obama is playing a waiting game until the

court is more favorable--it just lags on...

[nolabear]

61. Just when I get good and mad at him, Obama comes through again.

This is wonderful. Just wonderful.

[Bosso 63]

65. Its about time,

but with so many things happening in the news, I wonder if there is a reason the WH is changing policy on DOMA right now. Good news, but curious.

[ieoeja]

66. Warning. This only applies to section 3.

Section 3 defines marriage as between different genders for federal purposes.

Section 2, to which today's actions do not apply, exempts same gender marriages from full faith and credit between states.

[boppers]

139. ...in the 2nd Circuit.

This is a start, not a finish.

[chill_wind]

152. Position on Section 3 " would neuter 2, if followed through by court opinion"

according to suggestions here:

http://www.prospect.org/csnc/blogs/adam_serwer_archive?month=02&year=2011&base_name=obama_to_stop_defending_doma#123995

and a more detailed reasoning here by bmaz legal writing piece

http://emptywheel.firedoglake.com/2011/02/23/the-new-obama-policy-on-constitutionality-of-doma-boiesolson-reaction/



and whom I'm quoting from here:

.@AdamSerwer You are right about Section 3 v. Section 2 in new DOMA policy; position on 3 neuters 2 if followed through by court opinion.

http://twitter.com/bmaz


Back to Serwer's points about that:

At the same time, Holder's arguments would seem to preclude the administration defending Section 2 as well, since if sexual orientation is "not a characteristic that generally bears on legitimate policy objectives," then it's not like states have license to violate their residents' equal protection rights. But for the sake of clarity, the administration hasn't declared they will cease defending DOMA entirely -- merely the section of the law that prohibits federal recognition of same-sex marriage.

"It’s transparent to us that state restrictions don’t pass muster under the proper constitutional test either, and just as DOMA fails the constitutional test, so too do state restrictions on same-sex couples," Esseks says. "But the government hasn’t addressed the second point."

:shrug:

[Fearless]

67. Was that so hard? Now support our unions publically.

[Monk06]

72. About time he started to push back the bagger/fundies. I was ready to give up on him.

[Reader Rabbit]

73. Does this mean that it will eventually go to the Supreme Court?

Not sure I'm confident about that, given the current make-up.

[readmoreoften]

75. That's a positive bolt from the blue.

[chill_wind]

78. An excellent development. Who KNEW the Holder DOJ was answerable to the Obama WH

and could be instructed or ordered to stop defending heinous policy? This should forever destroy the arguments we've gotten from some quarters for two years running about so many other defenses of Bush era criminal policies.


K & R.

[madmax]

79. To many of us he seems to move

at a snails pace but, maybe he likes to dot all the i's and cross the t's first.

Unlike the newly installed Teabaggers and the newly minted Gov. of WI. They're gung ho - shoot from the hip wildcatters. And they're a gift for the left. :evilgrin:

I've been frustrated with President Obama. However, I've haven't ever reached the point that I would support a challenger. Carry on Mr. President.

Now about those war criminals...

[gademocrat7]

80. Yes!

K&R

[peace frog]

83. Now THAT's the Obama I voted for!

Well done, Mr. President!!!

[demigoddess]

84. about damn time!!!

pardon me but I am old and George W Bush and friends taught me how to swear!!!

[SpankMe]

85. Really good news - but...

...it seems a little late. Could this be the beginning of a short run of token policy changes designed to keep the liberal base engaged (however half-heartedly) in the run up to 2012? I think we'll see more of these policy changes designed to keep us interested, if only to counter the rightward tack the administration has taken on the business front. But, there'll be no sweeping progressive-friendly policies coming out.

[Lone_Star_Dem]

86. Wonderful news!

:kick: and R

[Politicub]

88. Boom! President Obama has earned the LGBT community's support many times over

I'm proud that he's our president, and I'm in tears right now about this momentous decision.

[Ter]

90. Great, now if only he could see how the Patriot Act is unconstitutional

n/t

[AlbertCat]

91. This is good news, but kinda easy pickin's for Liberals.

I mean, C'mon. Why wasn't it done 4 years ago?

Still... nice move Mr. Prez. Now about WI....

[SharksBreath]

94. So when will they do this for the Bush torture program, state secrets and warrant less

wire tapping.

[justiceischeap]

115. Probably never but hey, my rights as a member of the LGBT community have been trampled

much longer than those affected by the torture program, state secrets and warrantless wiretapping. Let's celebrate the victory for what it is and not whine about other issues. Okay?

[No Elephants]

190. I am so sorry you've suffered legal and other outrages.

[PopSixSquish]

95. Well I'll be Dammed!

:toast:

[ProSense]

98. ACLU: President Obama Says Discriminatory "Defense Of Marriage Act" Is Unconstitutional

President Obama Says Discriminatory "Defense Of Marriage Act" Is Unconstitutional

Justice Department Won't Defend ACLU Lawsuit On Behalf Of Surviving Spouse Challenging Government's Failure To Recognize Her Marriage

NEW YORK – In an historic show of support for equal treatment under the law, the Obama administration announced today that it will no longer defend the discriminatory "Defense of Marriage Act" (DOMA) in court. In a statement, Attorney General Eric Holder said that President Obama has concluded that Section 3 of DOMA is unconstitutional because it fails to meet the legal standard – "heightened scrutiny" – that applies when the government treats gay people and straight people differently.

One of the cases challenging DOMA was brought by Edith "Edie" Windsor, who shared her life with her late spouse, Thea Spyer, for 44 years. Windsor filed a lawsuit against the federal government for refusing to recognize their marriage and imposing a $350,000 tax on Spyer's estate when she died that Windsor would not have had to pay if she were married to a man. Windsor brought the lawsuit with the assistance of the American Civil Liberties Union, the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP and the New York Civil Liberties Union.

The following can be attributed to Anthony D. Romero, Executive Director of the ACLU:

"The president did the right thing and just propelled gay rights into the 21st century, where it belongs. Our government finally recognizes what we knew 14 years ago — that the so-called 'Defense of Marriage Act' is a gross violation of the Constitution's guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America. Our Constitution promises that the government will treat everyone equally. Today's announcement is a recognition that gay people, too, are promised equal treatment under the law. Now it is only a matter of time before LGBT people in the United States will finally have full equality in our society."

The following can be attributed to James Esseks, Director of the ACLU Lesbian, Gay, Bisexual and Transgender Project:

"Edie Windsor loved and cared for her spouse Thea Spyer for years, only to be treated like a total stranger after Thea's death. We are delighted that the government acknowledges that it is completely unfair to pretend that Edie and Thea were not married and treat their marriage differently from married straight couples."

more

[rug]

99. What happened to the arguments that the DOJ is independent of POTUS?

[t0dd]

102. there's an election coming up.. ; )

but i'll celebrate this development anyway and applaud the administration. K&R!!

[ClarkUSA]

108. This event just proves that Bill Clinton didn't have the guts to do what Pres. Obama is doing now.

I am so glad that President Obama was elected to correct so many Clintonian legislative FUBARs, of which DADT and DOMA figure prominently.

[Jakes Progress]

112. Love dem old primaries, doesn't we?

I am so glad that Obama is finally figuring out what his most ardent fans couldn't. For months they argued that this wasn't something the President could do, that we weren't a dictatorship for god's sake. I was told a dozen times by the same old crowd over and over that the President couldn't do what he just did.

Glad he saw the election coming and finally did what, as so many of us said two years ago, he should do. Glad to see you on the right side of this.

[ClarkUSA]

117. No, I like stating the obvious, despite the fact that some folks keep making excuses for Clinton.

I am so glad that President Obama's most ardent detractors are finally figuring out what my sig means.

[Jakes Progress]

148. No. You just loved the primaries. The smoke, The fire. The passion.

Now all you have is a mediocre, over-negotiator for a hero. And you need to add to your sig. "I Got This, eventually, you know when it can't be avoided, and as long as I don't lose any points.

By the way. Were you one of the ardentists who kept making the argument that Obama wasn't allowed to do anything about DOMA because we didn't live in a dictatorship? Was that you?

[jberryhill]

119. DOMA was a relief valve against a potential Constitutional amendment

And if that happened, it would be much harder to undo.

[No Elephants]

192. Aw, come on. You know better than that.

When was the last time a controversial amendment was adopted? 50 0r 60 years ago?

When was the last time a controversial proposed amendment even made it out of Congress?

[jberryhill]

118. It didn't go away... You'll be hearing a lot about it

...from Republicans seeking to impeach him over it.

The timing here seems to be based on a calculation that it is a fight they won't win at this point.

[boppers]

133. Let me highlight the important part for you:

"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."

The DOJ is required to uphold established law, but it wasn't established in the 2nd Circuit yet.

[rug]

167. DADT must not have been about sexual orientation.

[boppers]

170. Totally different law.

It doesn't work that way.

DADT is connected morally to DOMA, but not legally.

The sooner people stop thinking that the legal system makes moral sense, the faster changes can be made.

[rug]

172. The rationale now is different judicial standards of review, not different statutes.

Belatedly, there is a realization that sexual orientation is a Constitutionally protected class requiring the intermediate level of scrutiny upon a challenge to any statute affecting that class.

Otoh, I agree these machinations have nothing to do with morality.

[No Elephants]

196. I agree with your first two sentences. "Different statutes" has nothing to do with this.

"Military" might?

[No Elephants]

194. No. Existence of a precedent in a Circuit does not require the D of J to

defend an unconstitutional law, nor does what you quoted even claim that.

D of J's self-imposed m.o. is defending laws of Congress, not judicial decisions.


In fact, absolutely nothing requires the D of J to defend any law (which is different from a duty to enforce). That is only a practice that the D of J imposed on itself at some point.

And the D of J website used to say that in the early months of Holder's tenure. Last time I looked, that language wasn't there anymore. However, if you look at the OP, you'll see the D of J referring to a "long-standing tradition," not to any "requirement." Constitution and Constitutional oath trump any tradition the D of J chose to establish for itself.

The D of J can deviate from, or end, a practice that it reated for itself whenever it chooses. Indeed, tihis is only one of any number of times that the D of J has deviated from its practice.

I don't necessarily think the D of J defending laws is a bad thing--unless the law is un-Constitutional, in which case, no one in government should be defending it anywhere. Doing so conflicts with the oath the Constitution requires of the Executive and whih all other in government also take.

But "require" is a myth.

[boppers]

231. stare decisis.

http://en.wikipedia.org/wiki/Stare_decisis

Respect it, or don't.

[truth2power]

174. Interesting you should raise that issue...

because I've seen it here, over and over. Every time somebody takes Obama to task for anything of a legal nature, the response is that the DOJ is totally independent of the POTUS.

As soon as I saw that headline I thought, Oh, wait...."Obama decides..."?

Good catch!

[No Elephants]

200. Every federal executive department is totally independent of the Chief Executive, much as

a bank teller is totally independent of the bank president. Not subject to diretion in performing his or her job at all.

:sarcasm"

In fairness, the D of J's website uses the word "independent"-- or did--I haven't looked lately. What the D of J means--or meant--by that, though, is a mystery. Clearly, Holder and Obama did not just happen to arrive at this dramatic reversal in position on the same day independently of each other. Even more clearly, Holder is not the one dictating to Obama.

However, the other oft-repeated myth--that the D of J is required to defend every law of Congress--has been propagated and repeated endlessly with no credible source whatsoever. Everything I've read says it is a practice the D of J adopted for itself and one from which it can and does deviate--and the OP proves that, too.

[gateley]

101. Excellent! I just logged on so saw the entire statement and everything!

This is SO good! Do I have to stop dissing Holder now? :shrug:

Thanks, kpete! :yourock:

[ileus]

105. First good news in weeks...

[Weird Liberal Head]

106. Finally!

[RUMMYisFROSTED]

109. E

[Firebrand Gary]

111. Thanks for doing what is good and right Mr President.

[justiceischeap]

114. About F'ing Time!

He should have made this decision after the MA court ruled DOMA unconstitutional instead of continuing to fight it in the courts.

[Zenlitened]

120. Fantastic news!

:applause: :applause: :applause:

[Name removed]

123. Deleted message

Message removed by moderator. Click here to review the message board rules.

[EvilMonsanto]

127. thank you for good news

With all that's going on these days good news is hard to come by
thx

[Kurovski]

128. Thank you President Obama.

I knew the man couldn't go on the way he was. As a Constitutional lawyer, it was beneath his dignity to not maneuver around that issue.

I'm sorry I yelled at you over this Barack! :-) (sort of.) :crazy:

[DuaneBidoux]

129. Hate to be cynical but seems like he's making sure we "have" to stay with him in '12.

It seems like he throws progressives just enough bate to where we feel like we can't possibly abandon him because after all "he's still doing some good stuff on some issues that are important to progressives."

And he knows that both legal momentum and public opinion have swung heavily in favor of marriage equality in the last two years so there is much less risk with the middle (believe me he has been reading the polls that say that over 60% of Americans favor civil unions--so as with most "progressive" policies he has pursued the political risk is low". (Can anyone point to where he has taken a decision to support a progressive policy where the risk has been high?)

He has straddled so many fences and made what I consider unforgivable compromises with Repukes but what can I do? What can any of us really do now?

[gateley]

130. IMO, we DO have to stay with him. No way can we get another

Dem to win if we throw somebody else into the mix. We hurt ourselves enough by not voting for the Dems in the mid-term, can you even imagine what it would be like to have a Republican president? :scared:

He's got my vote, no matter HOW pissed or disillusioned I become.

If he keeps doing these "baits", then all the better - we get what we wanted.

[Name removed]

142. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[No Elephants]

204. I wouldn't say we got what we wanted, but we got something. And something is better than nothing.

[peace frog]

134. Cynic away, but we DO have to stay with him in '12

Yes, many of us have been disappointed that Obama is not the liberal firebrand we would have preferred. He still beats the holy hell out of whichever teabagging repuke is nominated to run opposite him in 2012. Four more years! (and I hoped not to have to say it, but there it is).

[gateley]

189. I'm with you, peace frog. nt

[Godhumor]

187. He has proven to be socially left leaning (compared to the general population) and fiscally moderate

Obviously, not left-leaning compared to the denziens of our little political bubble world here in DU.

He also tries to cement action in either broad governmental support or when he is sure it cannot be successfully challenged on a Constitutional basis (i.e. he is is extremely deliberate, cautious and pragmatic which drives people who want unilateral action nuts)

But this decision is in line with previous actions he has taken.

[Renew Deal]

202. So you're saying that you want to leave Obama, but he keeps drawing you back in?

:D

[DuaneBidoux]

229. I'm saying that at a rational empirical level he draws me back in but...

at the level of my heart it hurts every time.

[marasinghe]

135. well color me pink! seems spring is here. \~/

:woohoo:

[thanks_imjustlurking]

136. Well, finally.

I'm thrilled that he used the term "unconstitutional," but that doesn't negate the nauseating arguments his justice department used to defend it in the past.

[ruggerson]

137. Recommended n/t

[markpkessinger]

138. Great, if belated, news. Where are all the folks who previously argued that he HAD to defend it?

[msanthrope]

212. I'm here. If you read the letter, he still has to, per court order.

He is still obligated to defend DOMA.

It's HOW the DOJ will defend that has changed.

Holder can't ignore the courts.

[mvd]

141. Well done, Mr. President!

It is nice when he surprises me in a good way. :thumbsup:

[DissedByBush]

143. Will be great to see DOMA bite it, but I'm worried

The precedent isn't pretty.

I'm imagining some pro-rights law being challenged in court.

And a later Republican president decides not to defend it.

[No Elephants]

208. Which part of the Constitution would a desirable pro-rights bill violate?

Besides, this is by far not the first time the D of J has declined to defend a bill and the world didn't end.

[DissedByBush]

228. It doesn't matter

Someone winger will sue, claiming it violates a right.

Then the Republican president will not defend the law against the winger.

I'd like to see the prior examples. I couldn't think of any.

[totodeinhere]

144. Can someone else step up to defend the law, or will that judge's decision overturning

DOMA automatically stand now? Or since that decision has already been appealed, could the appeals court overturn the judge in favor of DOMA whether Obama defends it or not? I'm just wondering. Obviously I am not a lawyer.

[chill_wind]

147. This could be The Ballgame. They've gone *all in*

according to this excellent analysis at Emptywheel of what's possible or likely to happen going forward. IANAL either, but most of this isn't readily apparent in the press write-ups and msm commentary we've seen so far:

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.

Ballgame.

And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mind was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

much more explanation:

The New Obama Policy On Constitutionality Of DOMA & Boies/Olson Reaction
By: bmaz Wednesday February 23, 2011 11:56 am

http://emptywheel.firedoglake.com/2011/02/23/the-new-obama-policy-on-constitutionality-of-doma-boiesolson-reaction/

[No Elephants]

209. This did not create heightened scrutiny. The courts did.

The ballgame on this will be when the Supremes are done with it, so it may come down to Kennedy, who was a Reagan nominee.

[on point]

149. A GREAT step, but I smell a rat!

The last time the american left started to get some momentum against the economic interests in the country, we were thrown the repeal of DADT. Now that we may be on the verge of our own general strike to fight republican corruption, we are thrown this bone. This was something that should have, and could have been done right away if Obama wanted.

Now if he were to announce more real legal changes, like prosecution of Bush regime war criminals, that would be a help.

But I smell a rat. I think this is intended to take our eye off the coup d'etat being foisted on us by the economic interests.

Don't get me wrong, not defending DOMA is a good step, but minor compared to repealing it!

[a2liberal]

150. So they will continue (for now) to enforce a law they have concluded is unconstitutional? (n/t)

[markpkessinger]

153. They are constitutionally mandated to enforce the law.

They are not, however, constitutionally mandated to mount a defense of it against constitutional challenges.

[No Elephants]

185. They stopped enforcing DADT before it was repealed, but I do believe

that is different.

[krispos42]

151. A la carte constitutional rights? One less option on the menu. n/t

[Corruption Winz]

154. If this is true...

Obama is really going after the gay vote. With this and the overturn of "Don't Ask, Don't Tell." Obviously, a smart tactic.

And far more important than that, this is the right thing to do. Congratulations to any DUers that this might positively effect.

[musicblind]

156. I will never forget this.

Thank you Mr. President.

You have my respect and my vote.

[northofdenali]

158. Finally.

kpete, I'd give you yet another heart if I could afford another donation. Just found out we're being foreclosed. But at least SOME couples will eventually, I know, and I HATE that it will take time, have a real home and a real marriage, which is all that has saved my own sanity in the last few months.

:loveya::hug: Thank you for the good news. Now if we can just shed ourselves of these uber-CON servative nutjobs and educate the general public that a negation of DOMA won't hurt their hetero marriages - unless, of course, they're already in the 50+ percentile of man/woman marriages that fail.

[No Elephants]

218. I hope everyone understands what the OP says. It is very limited.

It says (in essence):

We've defended DOMA in judicial Circuits that have always applied a "rational basis" test to laws involving gays. (Almost any reason government gives, or hypothesize passes judicial constitutional review under a rational basis standard.)

However, now Section 3 of DOMA has been challenged in the Second Circuit, a Circuit that that has no precedent on point. Under all the circumstances, we don't think we can or should argue that a rational basis test should apply. If a stricter test applies, we believe we will surely lose. So, we are not going to defend Section 3 of DOMA in in the Second Circuit. However, we're telling Congress it can defend Section 3 of DOMA in the Second Circuit, if it wishes.

Meanwhile, we will continue to enforce DOMA {in all Circuits?-unclear) unless and until "there is a final judicial finding that strikes it down" {by the Supremes?-unclear}.





Sadly, gays still can marry only in a same gender marriage state and the federal gov.will still discriminate against same gender married couples, in terms of spousal OASDI, federal taxes, dropping federal funds to states that allow gay marriage, and whatever. (Coakley's lawsuit says something like 1100 laws are affected.)

However, IMO, what a President says still carries a lot of weight with many people. For that reason, I am thrilled our President will no longer say gays should not marry "because, with marriage, God is in the mix," or he is not sure if they should marry.

And I hope to heaven the President's words will influence Justice Kennedy.

I disagree, though, that they've never faced the issue before, but never mind about that for now.

And, though we hate that Brown beat her, I think AG Martha Coakley deserves some props for her suit against DOMA on behalf of Massachusetts.

[Annabella]

220. why did he defend it in the FIRST place?

This is all well and good but why did he defend it in the first place????

[DuaneBidoux]

230. Here I will defend Obama. HE never defended it, the justice department did.

It is very hard to come into an operating justice department where you have whole cadres of lawyers in departments who are constitutionally obligated to enforce the laws of the land.

Remember, the justice department is now not going to stop enforcing it, because legally they must enforce it until it is no longer the law of the land. The justice department, a part of the executive branch, is going to quit defending it in court cases. Under the influence of Obama and several complete teams of constituional lawyers they have simply decided the law is unconstitutional and they can not defend it in court challenge to the law.

Although I still think the timing is political (he sees the tide turning in favor of equal rights) I think his tactical lawyers (political appointees) in the justice department have told him the law is simply unconstitutional. They still must, constitutionally, enforce the law--but they will no longer take the side of the law in court cases.

All in all, this is huge--because eventually if the federal government doesn't argue for the law they will no longer be required to enforce it (In other words, in a case that goes against the law, the government will not appeal--taking away the biggest gun of the law that has been fighting equal rights) .

[Mad_Dem_X]

223. YES!

Good news! :bounce: :woohoo:

[BayAreaKen]

226. Can a president unilaterally change this?

So if the Obama administration can refuse to defend DOMA because they have determined it is unconstitutional does that mean that if the Republicans gain the presidency during the next election that that president will be able to undo the new Health Care law by unilaterally declaring that it too is "unconstitutional"? Where does this end?

Somebody please help me understand this!!

Thanks.

[Veruca Salt]

227. Another step in the right direction

k&r! :toast: :party: