T Nation

Govt Drops Defense of Anti-Gay Marriage Law


Good news :slightly_smiling:

(AP) 58 minutes ago
WASHINGTON (AP) The Obama administration says it will no longer defend the constitutionality of a federal law that bans recognition of same-sex marriage.

In a statement Wednesday, Attorney General Eric Holder says President Barack Obama has concluded that the administration can no longer defend the federal law that defines marriage as only between a man and a woman.

The Justice Department had defended the Defense of Marriage Act in court until now.


I wonder if this is part of the Obama administration's plan to try and divide fiscal and social conservatives?

Otherwise I applaud this. Weddings are a massive economic benefit, and the mountain of litigation regarding this issues is quite frankly ridiculous.


Meh, I am entirely indifferent.

Dont know why gay dudes want to marry so badly, but chacun a son gout.



"The President believes that DOMA is unconstitutional. They are no longer going to be defending the cases in the 1st and 2nd circuits," a person briefed on the decision said.

As Salon reports, Attorney General Eric Holder confirmed the news in a statement to the press:

"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 Presidentâ??s determination."



Obama calling something Unconstituitonal, am I missing something?


It wont happen forlife. Also technically the JOD still has to defend the bill. It will just be put at the back of the line. And like Orion said why do the Homos want to marry so bad? Like I told you before I have nothing against you nor the gay community.


Interesting. Irrespective of what you think about DOMA or gay marriage, I think this seems like good tactics, but bad strategy (from a Democrat point of view, anyway).

To illustrate what I mean, does this now mean a future GOP administration could decide not to defend the Constitutionality of Obamacare and the individual mandates? I think it's problematic for the administration to set a precedent of not defending properly passed laws with which it disagrees - people complained about the Bush DOJ being politicized, but they defended McCain-Feingold, even while maintaining it was unconstitutional as an overall judgment.

On the politics of gay marriage, it seems to me that Obama is trying to have it both ways here. Holder specifically claims that this is consistent with DOJ's "longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense." But, given the briefs filed in these cases already, it would seem there are reasonable arguments to be made (on both sides).

Lastly, Holder says that the Obama DOJ "will continue to enforce" DOMA. But it seems to create a paradox for the Obama administration to refuse to defend DOMA and to continue to enforce it. The most obvious reason I find to resolve the paradox is also cynical: Obama doesn't want to take political heat for failing to enforce DOMA, but he's hoping that his refusal to defend it will lead to court rulings in his favor (and he increases those odds if he refuses to defend the law). But in politics, cynicism is often the right instinct.


This is an excellent discussion of the political fallout that will likely occur:


If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Hereâ??s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congressâ??s power. Again, it will be a power grab disguised as academic constitutional interpretation.


Same-sex marriage = gravely immoral.


Yeah, who likes being able to visit their partner in the hospital? Or have power of attorney?

What are they thinking, really.


You can do that now, it's called paper work.


And the fact that one group of people can easily get all those rights bundled up in one package, in a system where no judge will ever arbitrarily decide to ignore them, compared to another group who has to go through a complex, lengthy, and expensive procedure for some of those same rights, where any judge can simply decide to ignore those agreements, is a blatant form of discrimination on the part of the government.


The problem with the question is figuring out if the guy is ignorant enough to play stupid (and pretend not to see all the obvious reasons why homosexuals want to be able to marry their partners) or if he's actually too stupid to get it.


I'm with Orin Kerr, we need to be careful about the precedent this sets. Probably is going to mean a bigger judicial role for the executive branch. You don't expect executive power to go down after it's gone up.

On the other hand, I'm still going to do the happy dance.


According to whose standard? Don't you understand that everyone has different morals? What's right for you may not be right for someone else. Stop trying to push your morals onto other people and society as a whole. It's important that every human being be living by a different standard. If everyone is basically doing their own thing morally certainly no bad can come of it.

My gosh you just don't keep up do you Brother Chris?

Just look at all of the progress that fringe groups have made over the past 25 years. All we can do is hope, but if things keep trending this way we can look forward to polygamous marriage, incestuous marriage and all sorts breaks for weirdo's....err I mean rights for those poor folks who march to a different beat. I don't know about the rest of you but I too am going to do the happy dance. What's not to be happy about? The country is certainly headed in the right direction morally. Things are really looking up!



This is a common misperception. My partner and I have done everything we can possibly do through our attorney, but we are still second class citizens in many ways. We don't have social security survivorship, can't file joint tax returns, can't adopt children in some states, can't immigrate our partners into the country, etc.


Feel free to condemn me to hell in your church, just don't force your religious beliefs on me through our government.

Then again, maybe we should start denying marriage to people who are divorced, have sex without culminating in vaginal intercourse, and all other kinds of gravely immoral acts.


Actually you have a point with the divorce thing.........assuming someone got divorced for inappropriate reasons like "well we just argue too much".


Thank God!