Section 2 of DOMA has been found unconstitutional - how will Obama's DOJ react?

[ruggerson]

Back when the Justice Department first started tangling with various DOMA suits in this young administration, they created an uproar with their overzealous language and legal eagerness to defend the 1996 statute.

They pulled back and softened their strategy a bit due to the political uproar they created. The President even issued a rare WH comment along with the revised brief.

But, the Administration still steadfastly maintained that they were compelled to defend it, because it was the law of the land and because no lower federal court had yet found it unconstitutional.

Welp, now that has occurred. A federal judge, a Republican appointed by Nixon no less, just completely overturned section II, finding it wholly unconstitutional.

http://www.nydailynews.com/news/national/2010/07/08/2010-07-08_boston_judge_federal_ban_on_gay_marriage_unconstitutional_calls_statute_discrimi.html

The Obama administration now has the perfect opportunity to do.... nothing. They have no obligation whatsoever to appeal this. Furthermore, they have no further legal obligation to defend DOMA in other suits pending in other states. Their own criteria has been met: a Federal Judge has struck it down.

The President has set the ball in motion on some of his promises to the GLBT community and their allies nation wide.

But, this is his opening to make a huge difference in the lives of tens of millions of American citizens.

They should, at the very least, refrain from appealing this ruling and stop defending Section II of DOMA in other cases.

This has been handed to the Administration on a silver platter. Let's encourage them to do the right thing and take advantage of what providence has offered them.

[jenmito]

1. "The Obama administration now has the perfect opportunity to do.... nothing. They have no obligation

whatsoever to appeal this." And I bet they WON'T appeal it. K&R.

[jberryhill]

2. How many federal districts do you want to limit this ruling to?

This decision is binding in the District of Massachusetts.

Do you want it to apply in the First Circuit?

Do you want it to apply nationally?

Absent an appeal, it remains binding in one place.

[ruggerson]

4. A DOMA case is not the best vehicle for a USSC ruling

If we're seeking a broad, pre-emptive Loving type of decision, the Olsen/Boies Prop 8 case is a stronger candidate.

[jberryhill]

5. That's a more distant target, though

Given the current composition of the court.

I can see a conservative being persuaded that, for federal purposes, a person is married under the law of the state where they are domiciled.

An example of this already exists in cousin marriage. Some states allow first cousins to marry, some states don't, and we've had that situation for a long time.

Since this ruling leaves the full faith and credit restriction intact (and Congress can restrict its effect), then a national ruling on the narrow scope of the decision here would immediately extend federal recognition to every state which has same sex marriage and every state which adopts it.

IMHO that is a good interim result.

[ruggerson]

13. the difference being

first cousins can generally "transport" their marriage to a state that wouldn't have married them originally, per the full faith and credit clause.

Gay couples would have to remain in one of the few states that currently recognize them.

I don't believe a broad decision is a distant target, largely because Kennedy wrote the majority opinion in both Romer and Lawrence. The Prop 8 case is better suited to make the argument for nationwide marriage equality. This DOMA case, as we both know, is rather narrow in scope.

[jberryhill]

19. ...with the exception of New York

Which applies FFC, but doesn't authorize same sex marriag in NY.

The thing about FFC is that it's a longer clause than commonly quoted, and there is support for the notion that Congress can regulate its operation. So you are back to a pure equal protection argument, which might win or not. The "or not" is the tough part, because it is not as if you can come back next year for another try.

The case has limited effect, but it's a tough one to argue against.

[Nicholas D Wolfwood]

28. +1

[davidinalameda]

3. I'm not holding my breath

[Uzybone]

6. I hope they don't appeal

this is a just ruling.

[jberryhill]

7. So you don't want same sex couples in Iowa to be federally recognized? /nt

[Uzybone]

8. I'd like them all to be recognized

all over the world.

Am I reading this ruling wrong?

[jberryhill]

9. This ruling is effective in Massachusetts, period

A decision by the Federal District Court for the District of Massachusetts does nothing in Iowa.

If this decision were appealed to the First Circuit and affirmed, it would be effective throughout New England (and not New York, which recognizes out of state same sex marriages, and is in the second circuit).

If it were affirmed by the Supreme Court, it would be effective nationally.

By saying "I don't want it appealed" you are saying that you want it limited to Massachusetts, and you are also saying that the executive branch can nullify legislation by not defending it, which is just another form of "signing statements".

If there is a non-frivolous grounds for appeal - and since this was decided as a pure legal question on summary judgment, the appeal argument is the same as the district court brief - then the DoJ has a duty to appeal it.

Alternatively, the DoJ could issue an opinion that would make it effective administratively, but that would only be as permanent as this administration.

[Uzybone]

11. I see, much thanks for breaking it down for me

[jberryhill]

14. No prob. - watch the outrage when it is appealed..

The thing is, a president can disagree with a law, but has a duty to defend and uphold it. Legislation passed by Congress and signed by a prior president has more weight than the opinion of any current president. We might as well elect ruling dictatorial juntas if that is the way it should work. Plus, the DoJ has independent duties to the law.

There are a couple of ways this can go down, but an appeal is not necessarily a bad thing here, especially given the narrow issue of the ruling. It plays right into the conservative notion of federalism.

But you will hear the nattering nabobs of negativity going nuts if this is appealed.

This country works best when the system is allowed to work. It didn't matter what Eisenhower thought of desegregation in Little Rock, one way or the other. When the court ruled, he enforced it.

[ruggerson]

15. Per his own DOJ

When a federal judge has ruled a statute unconstitutional, they then do not have a duty to defend it any longer - and there is much precedent for that.

If you are referring to GLBT citizens as "nattering nabobs of negativity" (or just channeling Spiro Agnew) I'm not sure I would seek your counsel on this matter.

[jberryhill]

20. Please don't put words in my mouth

No, I am not referring to LGBT citizens, including the married ones in my own family, as such.

I would like this ruling to have national effect.

If it is not appealed, it does not apply to same sex couples in Iowa. If I were like you, I would ask you what you have against same sex couples in Iowa, and every state except Massachusetts.

You don't like LGBT couples in Iowa?

As I already said, the DoJ could issue an opinion that nationalizes this administratively - and that evaporates when the administration changes.

Perhaps you'd like to explain how one gets to a Supreme Court ruling overturning DOMA, any part of it, if no case gets to the SC?

You think the Court, on a slow day, is going to say, "Hey gang, let's overturn DOMA!"

You want marriage equality everywhere, but you don't want any cases to go to the Supreme Court. Is that correct?

I am sorry, but that strikes me as an oddly inconsistent position.

Now, the DoJ can decline to appeal. That does nothing for Iowans, who would have to bring their own case. It can go down that way, but it is a piecemeal approach. I'm not one of those "have patience" types.

[ruggerson]

21. We've had a whole discussion about which case should go to the USSC

and I've already stated that I think it should be Perry Vs Schwarzenegger. The President's DOJ could actually file an amicus brief against Prop 8 instead of enacting a charade and defending the constitutionality of DOMA in the Mass Vs USA suit.

Review our discussion above.

[jberryhill]

22. Ummm....

There's not even a decision in that case.

So, you are hoping for a LOSS in Perry v. Schwarzenegger?

And I'm some kind of crypto bigot for recycling a famous phrase?

That also strikes me as odd. You want to lose the case, so that the DoJ can file an amicus brief.

Okay, we do sincerely differ. I am hoping Prop 8 is overturned ASAP. I understand your reasoning for wanting a different result, but I'd just as soon LGBT couples in CA can marry again soon.

[ruggerson]

23. Prop 8 is going to be appealed regardless of which side wins

and I think it goes without sayingi that I hope (and believe) there will be a ruling against the state. The other part of your post is a red herring, so I'm not quite sure what to tell you.

If you don't understand how your remark about you anticipating "outrage" from "nattering nabobs of negativity" is offensive in the context of a group of citizens fighting for their civil rights, then we are not going to have a very successful dialogue.

[jberryhill]

24. If the Mass v US ruling is appealed, there will be outrage

That is a fact.

I beleive this case has a high probability of being upheld at the highest level, and I believe it should be.

You are posing a false dichotomy. It is not an either/or situation, and an amicus brief by anyone is not going to make or break the ultimate course of that case.

But you cannot refrain from calling me a bigot because I would like this ruling to have national effect. So, good luck and goodbye.

[ruggerson]

25. Since no one

in this entire thread called you a bigot, I have to conclude that you are abandoning your arguments on their merit.

And there I would agee with you.

[Nicholas D Wolfwood]

29. No, the poster is abandoning it because you're intractible. (nt)

[jonnyblitz]

26. I don't see where he called you a bigot. you should stop putting

words in his mouth. I guess it's easy to be dismissive of our strong emotions when it isn't YOUR rights being denied.

[jberryhill]

27. Another vote against LGBT rights in Iowa

Okay, and your reason for not wanting the same rights in Iowa is.... What?

This case doesn't get to the Supreme Court without an appeal.

I want wins in both cases, and I don't think anyone should have be "patient". Ignored doesn't want this ruling to have national effect, and wants to wait for an appeal of another case which has not been decided.

That makes me your "opponent" in some bizarro universe.

[Ozymanithrax]

10. Actually, I still want it taken to SCOTUS... n/t

[jberryhill]

12. The specific issue here is a real challenge for conservative jurists

Because it is a straightforward "who gets to decide who is married" question, which is firmly a state issue (absent an equal protection violation).

I'm trying to imagine the conservative legal argument against this ruling. The best I can think of is an "administrative efficiency" argument that burdens the federal government by keeping track of which states do, or do not, permit same sex marriage, in the administration of affected federal provisions.

That's pretty weak stuff against the nearly exclusive province of states on questions of family law.

[The Hitman]

16. 10th Amendment

I haven't seen the decision, but I heard it was made on 10th Amendment state sovereignty grounds.

Not a fan of that. If anything it should be full faith and credit.

This could be bad.Anybody have a link to the text?

[ruggerson]

17. It can't be full faith and credit

this was a decision on Section II not Section I.

http://legalpad.typepad.com/my_weblog/2010/07/full-text-of-landmark-doma-ruling-cites-tenth-amendment-violation.html

[The Hitman]

18. EPC

GOOD.

That's the strongest argument to be made. I hope the Prop 8 case turns out the same way (even though its not based on that particular statutory scheme). No matter what happens, this issue is going further and further up.