On the DOJ's brief to set aside The Commonwealth of MA's challenge on DOMA -

[pinto]

As always, it pays to read the brief, not just the media reports or blog posts.

The brief *actually* mentions that while the Administration does not support DOMA politically, DOJ feels MA's challenge doesn't stand on purely Constitutional grounds.

Mentions matters of differing State / Federal jurisdiction and requests for legal relief that MA makes in it's suit - i.e. DOMA didn't prevent MA from legalizing same sex marriages. Those marriages are legal in MA and any other state that chooses to recognize them as such. DOJ claims MA's argument on the point is not consistent with both the Constitution and the effect of DOMA in relation to the Constitutional outlines on State / Federal rights and relations.

Mentions that MA's suit relies on the Constitutional definition of "protected class' to include gays, which hasn't been determined at that federal level. That is what it is.

Also mentions some financial points, in relation to State and Federal responsibilities for federally funded programs that eluded me. i.e. The Feds can't reimburse MA for same sex spouse coverage under Medicaid because it's not in the applicable federal statutes.

The brief broadly suggests that the best course of action is changing the law itself, in Congress, or find better Constitutional challenges that would stand up to SCOTUS scrutiny.

A well crafted cop out? Could be. Who knows? I'm no Constitutional scholar and that's what much of this is about. But I don't see the brief as a broad attack on gays.

Actually, it may be a good legal sparring between a state and the federal government to determine just what's what and where to go.

http://www.scribd.com/doc/30754624/Latest-DOJ-brief-defending-DOMA

:hi:

[katandmoon]

1. The Obama administration has made its position on gay rights crystal clear

Wherever it can, it will deny and delay them.

[Toasterlad]

2. And Why Do Obama and the DoJ Find It Necessary To Defend DOMA?

[Beetwasher]

4. Because DOMA Is, Unfortunately, A Federal Law

And when someone brings suit against the Gov't charging that a law is unconstitutional, the gov't HAS to defend itself and that's the DOJ's job. Obama can't just nullify the idiotic law. I wish he could. But only Congress or the courts can do that. This suit is a step towards that. But who do YOU suppose should represent the gov't if not DOJ?

How do YOU think this should be handled? Should Obama nullify the law via fiat? That would be grossly unconstitutional.

[Toasterlad]

7. That Is Simply Not True.

The DoJ does NOT have to defend every law that's challenged, and has, in fact, historically NOT done so many time. Goodle "defense of DOMA", and you will find links to why defending DOMA is unnecessary, and completely out of sync with what Obama has said are his goals for GLBT equality.

How do I think it should be handled? I think the DoJ should stop trying to get these cases dismissed, should stop filing briefs defending DOMA, and should let a judge rule it unconstitutional. Obama will NEVER allow it to be dismissed legislatively. Of course, he'll do everything in his power to prevent a judge from throwing it out too, so it really doesn't MATTER how I think it should be handled. It only matters how OBAMA thinks it should be handled, and he likes the gays right where we are: under the bus.

[Beetwasher]

8. Of Course They Do, Who Do You Think Defends The Gov't In Court When A Law Is Challenged

As unconsitutional? Perry Mason?

Umm, the only way a judge can rule it as unconstitutional is if it goes to court. If goes to court, the gov't provides a defense. That's just the way the system works. Or do you think the gov't should just not show up to court and the plaintiff can say "well, judge, the defense didn't show, therefore, I win!"

How do you think the judicial system works? The plaintiff just shows up and tells a judge what to do? Or the defense just stands there and giggles? Seriously, tell me, how does the judicial system work in your view where there can be a trial with NO defense?

There is a federal law on the books. A disgusting, shitty, unconstitutional federal law that must be challenged in court and rendered unconstitutional OR overturned by Congress. Despite the odiousness of the law, DOJ must defend it, because it's the law and that is their job. And that is the ONLY way to have a judge deem it unconstitutional. There must be a defense of it. A defense that FAILS.

[Toasterlad]

11. "well, judge, the defense didn't show, therefore, I win!" Exactly.

Which the DoJ has done many times in the past.

Please bone up on how the Justice Department works before trying to lecture someone else about how the Justice Department works.

[Beetwasher]

13. Bullshit, Source It

Cite one case where DOJ didn't show up to defend a constitutional challenge to a fed law. Just one. Go ahead.

[pinto]

9. Yes, they do have to answer challenges, if filed. That ls their job.

They represent the federal government in suits against the federal government, regardless of social context or suitability to be heard at the federal level. It's the process. It's not *meant* to be discriminatory. Far from it. It's meant to provide another layer of oversight on laws, how they are implemented and how they meet Constitutional standards.

The DOJ has given a judge, or a panel of judges, the opportunity to rule on MA's suit. They filed their brief with the court in answer to MA's suit. Both arguments are on record and before the bench. Their motion to dismiss is a pretty standard point to make, iirc.

And, for what it's worth, I doubt if Obama could, or would, prevent a federal judge from making a legal decision. It is really not in his hands, legally. Say they came to a decision that Pres. Obama opposed. There would be nothing he could do in the federal system. DOJ could appeal, at the federal court level, of course. But it's not like Pres. Obama could veto a court ruling. It's just not the way it goes.

[Beetwasher]

10. Motions To Dismiss Are Practically Universal As A First Step In ANY Civil Case

So that's another good point! :thumbsup:

[Toasterlad]

12. As I Said, Please Google "DoJ Defense of Doma".

You will find several links to instances where the DoJ did not challenge a suit against an existing law, because that law was believed to be unjust or unconstitutional....which is what Obama has said about DOMA.

[pinto]

5. See your point. Yet, I think DOJ is defending the Constitutional arguments here.

It may well be a cover for some broad opposition to equal rights. I can't tell from the brief - and that is the record. Media assessment is always, media assessment.

[Bluebear]

3. 'But I don't see the brief as a broad attack on gays.' - and I do.

The defense of DOMA is totally unnecessary. At least the DOJ didn't compare gay marriage to incest this time around.

Background:

http://www.americablog.com/2009/06/obama-justice-department-defends-doma.html

[pinto]

6. I think the point is, they aren't *defending* DOMA per se. They're objecting to MA's suit.

May seem a splitting of hairs POV, yet Constitutional challenges often go to the the legal points, not the social points. And end up with the Supreme Court. That's SCOTUS' job. When they ruled on voting rights, desegregation in public schools and the racist march in Skokie, they did so on Constitutional grounds. That's their job.