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SHOCK: Obama Says DOMA Is Unconstitutional, DoJ Won’t Defend It In Court

Well isn’t this a remarkable turn of events. After years of defending the Defense of Marriage Act in court, Attorney General Eric Holder says DoJ will no longer try to maintain the law’s Section 3, which forces the government to treat legal same-sex marriages as invisible. Done. Kaput. Moreover, the president has finally said concretely what he’s only hinted about before: that DOMA is unconstitutional. Plain as that.

In an open letter to House Speaker John Boehner, Holder writes, “After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination. ”

He continues: “While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.”

The significance of this development cannot be overstated. No longer will the federal government truly stand in the way of lawsuits challenging the constitutionality of DOMA’s Section 3. Which means if Congress does not repeal the law, the court’s will, and the Obama administration won’t get in their way. Further, we have Obama (through Holder) saying he believes the law “violates” the Constitution. We have been struggling to get him to say exactly that, and argued that until he uttered the words, we should believe his stance to be he’s fine with DOMA.

This is a great day.

UPDATE: Boehner responds: “While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

By:           Max Simon
On:           Feb 23, 2011
Tagged: , , , ,

  • 80 Comments
    • Shannon1981
      Shannon1981

      Thank You Mr. President! My faith is beginning to be restored! DOMA is on its way out, hopefully. Maggie Ghallagher and company, chew on this why don’t you?

      Feb 23, 2011 at 12:39 pm · @ReplyReply to this comment ·
    • Andrew
      Andrew

      Might I once again be an enthusiastic Obama supporter in this upcoming election? Either way, this is historic!

      Feb 23, 2011 at 12:43 pm · @ReplyReply to this comment ·
    • Jill
      Jill

      Yeah, just what is needed to secure gay support for 2012. Just sayin’…

      Feb 23, 2011 at 12:44 pm · @ReplyReply to this comment ·
    • Weltall
      Weltall

      This brought tears to my eyes. This is the start of real change.

      Yeah I know it’s been a long road to the top of the hill, but we are at the summit and can see where we’ve been and where we are going.

      Thank you Mr. President

      Feb 23, 2011 at 12:47 pm · @ReplyReply to this comment ·
    • dvlaries
      dvlaries

      This is an usual day. I can’t remember good word on this site about Obama since sometime before he let Rick Warren at the inauguration.

      Feb 23, 2011 at 12:55 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      I will have to send out an e-mail to the Obama campaign asking them to start sending me fundraising e-mails again. I will happily donate.

      Thanks for showing up to the party Mr. President, you were a bit later than I expected, but you brought an OUSTANDING gift!

      Feb 23, 2011 at 1:01 pm · @ReplyReply to this comment ·
    • ChiGuy76
      ChiGuy76

      I wonder how GOProud will spin this one. Remember that big tent acceptance B.S. that Chris Barron was talking about? How concervatives actually accept and support gays and it’s the Democrats keeping us down? I don’t exactly see John Boehner and Eric Cantor lining up to repeal DOMA. I can’t wait to hear GOProud’s explanations (apologies) when the Republican caucus in the House falls all over themselves to defend DOMA in court.

      Feb 23, 2011 at 1:14 pm · @ReplyReply to this comment ·
    • Jonathan
      Jonathan

      I went to grad school and, in fact, became quite close to Eric Cantor and am deeply saddened by the path he has chosen to follow.

      But G-d bless the democrats, President Obama and the American people for having the courage and wisdom to put him in the Oval Office.

      Feb 23, 2011 at 1:27 pm · @ReplyReply to this comment ·
    • Michael W.
      Michael W.

      Mmmm, that’s some good Obama. His dick suddenly tastes better to me.

      Feb 23, 2011 at 1:29 pm · @ReplyReply to this comment ·
    • Red Meat
      Red Meat

      This will be the heated political topic this year I see.

      Feb 23, 2011 at 1:33 pm · @ReplyReply to this comment ·
    • reason
      reason

      The president is holding true to his words that by the time he is out of office that the GBLT community will be very happy with him. The president is a true ally albeit methodical and meticulous on his approach to things. He is a person that plans to win, and some times that cause things to be a little slower than one wants, but compare that to others and look who is actually getting results. This also means that he will push for making the tax code fair, federal benefits for GBLT throughout the government and military. He has changed hospital visitation policy and a whole host of other policy in the government to push the U.S. toward true equality. He is also going to make a push for EDNA, he is looking on track to be one of the greatest hero’s of this community, an Abraham Lincoln but one that actually loves this community. He is also making these changes in his first term; you can bet dollars to donuts that if another person was in the oval office none of this would be happening. It was clear that Obama was a transformational president when he went for health care against the conventional wisdom of all his aides, moving the ball forward for the first time in several decades even though he knew it would cause him political grief. Trust me the social conservatives are going to try to pull a Bush 2004 attacking this president non-stop for this. It will be our job to show that the GBLT community doesn’t leave it’s allies on the battle field to fend for themselves. Obama is a true leader, here is to hoping the economy will improve faster and help him toward re-election. Hopefully more people that were once skeptical will see that the Obama’s “koolaide” is an elixir of life: the values of equality that he is espousing are morals that should have been here from the start to eternity. The beauty is America is to realize that there are flaws, but to keeping fighting to make this a more perfect union.

      Feb 23, 2011 at 1:42 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      Stop hyperventilating, kids. Read the damn thing. It’s not really good news.

      Since the DOJ has suddenly adopted their opponent’s argument that gays should be a suspect classification, now would be a GOOD time for them to be arguing the government’s case.

      Just when they take the right side, they quit.

      Furthermore, Obama intends to continue enforcing §3 of DOMA, “unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”

      Of course, it has thus far been Obama’s habit to ignore “definitive verdicts” when they strike down antigay discrimination.

      Feb 23, 2011 at 1:48 pm · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      Bottom line: Expect the Federal Marriage Amendment to be the campaign promise for Republicans in 2012.

      Feb 23, 2011 at 2:03 pm · @ReplyReply to this comment ·
    • Michael W.
      Michael W.

      Only someone named TheCrustyBastard could interpret this as “not really good news,” Lmao.

      And that Federal Marriage Amendment bullshit failed like two times. Republicans are dumb but not dumb enough to go chasing that dog again, especially now when their source of energy is that whole Libertarian Tea Party states rights tilt that says all power centralized within the federal government is bad.

      Feb 23, 2011 at 2:15 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      @reason: said…

      The president is holding true to his words that by the time he is out of office that the GBLT community will be very happy with him. The president is a true ally albeit methodical and meticulous on his approach to things.”
      _____________________

      Yes, and I’m sure that gay’s donations dropping approximately 80% and liberals staying away from the polls had nothing to do with any of this. ;)

      But thats allright, I have no trouble with politicians being politicians. I’m just ecstatic that the gay community fielded enough clout to get our issues looked at.

      Feb 23, 2011 at 2:16 pm · @ReplyReply to this comment ·
    • tjr101
      tjr101

      @Elloreigh: And we welcome them to campaign on that. It will show the rest of America what blatant bigots they are and don’t give a ratsazz about jobs or the economy!

      Feb 23, 2011 at 2:17 pm · @ReplyReply to this comment ·
    • reason
      reason

      @Elloreigh: The GOP would have to gain a lot of seats to pass the Federal Marriage Amendment. It will also show that the GOP is pursuing old ways and really doesn’t care about jobs, if that hasn’t become clear with the speaker saying he doesn’t care if government workers lose their job. It will also push the christian right into a frenzy rejecting moderates and Mormons for the likes of a Huckabee while strengthening the arm of the Tea Party that hates mittens. If they end up pushing for someone even further to the right than Huckabee they may have a person at the top of the ticket that is unpalatable to independents and ignite a fire under democrats. Pushing the moderates plus born again conservative Romney out leaves a group of people that can’t claim any sort of economic, executive, business, or whatever they are calling it, prowess over Obama which maybe one of the presidents only weak spots if the jobless rate doesn’t decline substantially by mid 2012.

      Feb 23, 2011 at 2:25 pm · @ReplyReply to this comment ·
    • reason
      reason

      @Cam: GBLT are going to matter very little to this presidents re-election they are such a small proportion of the population, and not everyone in this community donates to political organizations. Look to the Clinton rule that proved that GBLT matters very little at the end of the day unless ones support is being used against them as in 2004 with Kerry. This decision could have political liability or benefit depending on who the GOP nominates and the state of the economy. Independents are what matters and their focus will be on the economy, the only way this can benefit Obama is if it force the GOP to the hard right as stated in my previous post. It can also sour the political classes views on GBLT if the president ends up struggling during the election, there will be the old words of we told you the gays are toxic. They will use us as the scape goat, this community has yet to demonstrate that it will do everything in its power to protect its allies, GBLT enthusiasm and electoral success will help change that narrative deserved or not. In the political world sometimes superstition trumps common scenes, i.e. Rahm telling the president to stay away from health-care and GBLT issues.

      Feb 23, 2011 at 2:42 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Michael W.:

      Look, nobody wants this to be good news more than I do. It’s just being oversold.

      The DOJ is only saying it won’t defend §3 in the two new cases filed last November in the Second Circuit. The DOJ then invites any congressmembers “who wish to defend the statute [to] pursue that option” and the department also guarantees those individuals “a full and fair opportunity to participate in pending litigation.”

      This is interesting, because I’m not certain congressmembers are a party with standing to defend the law.

      Furthermore, just because Obama has come to believe the law is unconstitutional doesn’t mean he isn’t still going to enforce such an invalid law against you:

      “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.justice.gov/opa/pr/2011/February/11-ag-222.html

      This is also interesting, because if Obama actually believes the law is unconstitutional, it would be a violation of his oath of office to enforce it.

      Feb 23, 2011 at 2:50 pm · @ReplyReply to this comment ·
    • customartist
      customartist

      My letter to Obama: (feel free to copy and sent it yourself)

      http://www.whitehouse.gov/contact

      I would like to thank President Barack Obama for rightly determining that it is Un-Constitutional for the Federal Government to be defending DOMA Sect. 3 in the Courts.

      And on that same sound basis, I would like to kindly ask that he do Additionally Determine that it is Also Un-Constitutional to Continue to Deny Any and All Federal Marital Rights, Benefits, Protections, and/or Recognitions to Legally Married Gay Couples which are already being extended to our Heterosexual Counterparts.

      Thank you Sincerely,

      Feb 23, 2011 at 4:03 pm · @ReplyReply to this comment ·
    • Zander
      Zander

      Come on America, We are going to have so much egg in our face when the entire middle east has gay marriage and we are still trying to get it legalised in all of our states. The time is now, lets not talk about us being a progresive nation when we are falling so far behind in, well, everything.

      On a positive note, at least this is a somewhat step in the right direction, but seriously this is 2011.

      - Zander

      Feb 23, 2011 at 4:19 pm · @ReplyReply to this comment ·
    • Harbo
      Harbo

      Thank God. Finally Obama grew some balls. I worked my ass off for him during his campaign. But then notning happened. My frustration grew along with everyone’s. Now that’s it’s finally happened, I’m grateful. I’m just sorry it’s about a year too late.

      Feb 23, 2011 at 4:48 pm · @ReplyReply to this comment ·
    • Jeff
      Jeff

      @Jill: …and he shouldn’t get it after this? lol..

      Feb 23, 2011 at 4:52 pm · @ReplyReply to this comment ·
    • reason
      reason

      @the crustybastard: http://www.huffingtonpost.com/2011/02/23/obama-doma-unconstitutional_n_827134.html . The Attorney General and President provided the rationale why the law is unconstitutional using previous precedent set by supreme court rulings to arrive at that conclusion. That gives a strong argument not only for these cases that are preceding but opens a door way for a flood of suits challenging the constitutionality. Furthermore the government is agreeing that homosexuality is innate and not a choice, which has bigger implications that impact EDNA and a variety of other equality issues. They are providing a gateway for equality, and Boehner is already furious, now the political spin will begin. Boehner’s job just got a lot more difficult, his chance of controlling his parties message is going out the window. Like with immigration reform the GOP just can’t keep there raw hatred out of the debate. It may further fracture what has become an unwieldy caucus, a large faction is already upset that the economy and tea party have shifted the debate away from social conservatism. An internal GOP civil war at the start of the presidential election season will put their candidates on fault lines.

      Feb 23, 2011 at 4:52 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @reason:

      Weren’t you one of the people most doggedly insistent that Obama had no choice but to defend and appeal on behalf of these unconstitutional laws?

      Feb 23, 2011 at 5:28 pm · @ReplyReply to this comment ·
    • Jeffree
      Jeffree

      @Reason (#24): Very well said! I predict that the Republicans will be pushing their socially conservative planks and forgetting that the number one issue for most Americans is the economy (job growth).

      We already saw at CPAC that the emphasis is clearly on social issues. Any emphasis on fiscal stuff seems to based on “welfare,” arts fùnding & Planned Parenthood.

      Obama’s stand off with Boehner won’t stop at DOMA but about what the gov’t can & is willing to do about the economy.

      Feb 23, 2011 at 5:29 pm · @ReplyReply to this comment ·
    • Steve
      Steve

      Important questions remain: What is the impact of this, on the ground? What is the practical effect for real people?

      We live in Florida, where there is a DOMA clause in the State Constitution. If we were to get married in another state sometime soon, what would that marriage be worth in Florida? As one important effect, if something happened to one of us, would the other have to probate a will? In order to get Florida to recognize our marriage, would we have to go to court in Florida? And, would the be a state- or federal- court, or both?

      It seems to me, the only immediate on-the-ground implication of this announcement is, that the lawyers who deal with same-sex marriage are going to have full employment for another several years.

      Feb 23, 2011 at 5:47 pm · @ReplyReply to this comment ·
    • HAL
      HAL

      “While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

      So… the screaming about abortion and the health care bill the republicans have been doing aren’t a controversial issue that sharply divides the nation? Man, I must be really out of touch.

      Feb 23, 2011 at 6:53 pm · @ReplyReply to this comment ·
    • Zack
      Zack

      Mr. President, I can finally say I love you! Now that is the man I voted for.

      Feb 23, 2011 at 6:58 pm · @ReplyReply to this comment ·
    • Myron
      Myron

      This is indeed good news and I hope that in the end DOMA will be repealed.

      Feb 23, 2011 at 7:10 pm · @ReplyReply to this comment ·
    • B
      B

      http://www.sfgate.com/cgi-bin/blogs/nov05election/detail?entry_id=83628&tsp=1 has Holder’s remarks in full:

      “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.”

      Feb 23, 2011 at 7:20 pm · @ReplyReply to this comment ·
    • Ceaser
      Ceaser

      Rethuglicans are shitting their pants right now….. I friggin’ love it! GOBAMA

      Feb 23, 2011 at 7:30 pm · @ReplyReply to this comment ·
    • Francis
      Francis

      It’s a good start. And an important step. However, it also puts an even bigger target on our backs. So hopefully everyone is ready for the bumpy ride.

      Feb 23, 2011 at 7:34 pm · @ReplyReply to this comment ·
    • Julian
      Julian

      Oh SNAP, I think he just moved a little to the left! Obama, you are confusing my small mind. Are you liberal or not?
      Smart move though!

      Feb 23, 2011 at 8:16 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      AWW too bad the President doesn’t get to decide what is or is not Constitutional since, well since that is the JOB of the Supreme Court. There is a reason for the three branches of government and President Obama obvioulsly has forgotten (if he ever did know) this fact.

      So he can do as he wishes when it all comes down to it the Courts will decide and I have no doubt they will decide in favor of keeping the Act in place.

      So enjoy your brief moment as it will not last.

      Feb 23, 2011 at 8:20 pm · @ReplyReply to this comment ·
    • B
      B

      No. 35 · Michael Letterman wrote, “AWW too bad the President doesn’t get to decide what is or is not Constitutional since, well since that is the JOB of the Supreme Court. There is a reason for the three branches of government and President Obama obvioulsly has forgotten (if he ever did know) this fact.”

      President Obama has a law degree from Harvard and knows far more about government than Michael Letterman does. Letterman should read No 31, which has Eric Holder’s statement in full – specifically, the last few sentences: “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.”

      Feb 23, 2011 at 8:35 pm · @ReplyReply to this comment ·
    • TwlightoftheDogs
      TwlightoftheDogs

      Actually, there’s a 50/50 chance that the S.Ct. will rule in favor of heightened scrutinyt for gays, so that explains in part the president’s reversal along with other factors like this was likely his real position despite throwing us under the bus before, he sees the direction of history, activism is working, etc. This situation is very complicated, but for now, it is moving in our direction. As Bill Bennet once said- even as he fought against marriage equality- its likely inevitable. The reasons why is that the same arguments that apply to racial equality apply here. THe only thing that has prevented it from sinking is hatred of gays. That’s losing year by year. Everyone, including the bigots, kind of know.

      Feb 23, 2011 at 8:45 pm · @ReplyReply to this comment ·
    • Baxter
      Baxter

      @Michael Letterman: Last time I checked, the President swears an oath to uphold the Constitution. If he believes a law is unconstitutional, it is his duty to not enforce it. The idea that only the Supreme Court can decide the constitutionality of a law is a very recent and very controversial development.

      Feb 23, 2011 at 9:11 pm · @ReplyReply to this comment ·
    • TwlightoftheDogs
      TwlightoftheDogs

      @Baxter: You have no idea what you are talking about. That’s not the rule. Unless Madison v. Marbury is your idea “recent” your comment is nonsensical. THe part that you get right is that a president is not required to enforce a law that is the president believes to be unconstitutional, and then asks the courts to decide whether it is unconstitutional. It is not that in not enforcing it that the president is deciding the merits of the law. He or she is actually stating that until the court decides it won’t enforce. In other words, if the court rules against the president here, which I hope the court doesn’t do, then the president is required to enforce.

      Feb 23, 2011 at 9:35 pm · @ReplyReply to this comment ·
    • Comixbear
      Comixbear

      “…the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

      Yeah, that’s the Republican’s job!!!

      Feb 23, 2011 at 9:38 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      So you have personal knowledge of what law school I attended? Or the fact that my step sister is a former State Attorney General? Or my wife who is one of the states top Paralegals? Or the rest of my family with law degrees and or other specialities?

      Amazing.

      If you’ve studied Constitutional Law you’ll see who is responsible for deciding what is and is not applicable and it isn’t the President. If you think otherwise then you’re education is lacking along with your morals.

      Feb 23, 2011 at 10:34 pm · @ReplyReply to this comment ·
    • Oprah
      Oprah

      As a God fearing person, i dont believe in gay marriage. But that doesnt mean i will not vote for it, in the name of human rights, i will vote yes for gay marriage. Just for the gays to get the same rights as the straights.
      I think Obama doesnt care whether he gets elected for a second term or not. The man has had it. lol

      Feb 23, 2011 at 10:53 pm · @ReplyReply to this comment ·
    • Soupy
      Soupy

      As a god fearing person, I hope that you don’t eat shellfish. He doesn’t like that either.

      Feb 23, 2011 at 11:04 pm · @ReplyReply to this comment ·
    • TwlightoftheDogs
      TwlightoftheDogs

      In a way, this all means that gay rights has entered that “We can’t be open bigots” phase that racism against people of color faced once the majority decided it couldn’t be open in its bigotry.

      Around about the 70s, once racism was no longer acceptable in polite society, the arguments morphed into issues like “crime” and “affirmative action” and later with Reagan “welfare queens.” What they were still saying is “we hate people of color” but they couldn’t say it openly.

      The same is happening with gay rights. They can’t say “we hate gay people” so they must cover it up. That’s an advancement of the Overton window regarding how society views gays. Its no longer completely okay to be a total mouth foaming bigot. even the worst of the worst must pretend that they aren’t going to bash us now. They are totally thinking about it, but they can’t say it. That’s the sign that they are losing social influence.

      Feb 23, 2011 at 11:06 pm · @ReplyReply to this comment ·
    • B
      B

      No. 41 · Michael Letterman wrote, “So you have personal knowledge of what law school I attended? Or the fact that my step sister is a former State Attorney General? Or my wife who is one of the states top Paralegals? Or the rest of my family with law degrees and or other specialities? Amazing.”

      Odd. Nobody said anything about what law school you attended. I pointed out, however, that our current president, a graduate of the Harvard Law School, is far more knowledgeable about government than you based on what you posted (if only because you got the facts wrong).

      AND

      “If you’ve studied Constitutional Law you’ll see who is responsible for deciding what is and is not applicable and it isn’t the President. If you think otherwise then you’re education is lacking along with your morals.”

      LOL – the issue was merely your lack of reading comprehension.
      The articles stated that the DoJ, with the approval of the president, will not argue in court that DOMA is constitutional,
      but the part of DOMA in question will be enforced until a court decides otherwise. Letterman, you need a civics lesson – what the executive branch argues in court is a decision of the executive branch. Congress was notified, so it can offer its own arguments if that is what it wants to do.

      Feb 23, 2011 at 11:24 pm · @ReplyReply to this comment ·
    • Codswallop
      Codswallop

      @Michael Letterman: Lemme guess. A Liberty University law degree, a very poorly respected school that’s nonetheless beloved by Republicans for their ties to the Religious Right and alma mater of Monica Goodling?

      Feb 23, 2011 at 11:40 pm · @ReplyReply to this comment ·
    • Francis
      Francis

      @Michael Letterman: When someone resorts to trying to build themselves up as righteous and the greatest thing walking on Earth, you know they have no legitimate position to actually defend.

      Feb 23, 2011 at 11:41 pm · @ReplyReply to this comment ·
    • Jeffree
      Jeffree

      lgnore the troll Letterman. He is a known entity on numerous blogs and has made actual threats to commenters on this site. There’s no use in arguing with someone who is here to stir s##t up and who only derails the thread.

      Feb 24, 2011 at 12:01 am · @ReplyReply to this comment ·
    • reason
      reason

      @the crustybastard: Absolutely, it is bad precedent and a gross over reach of executive power. It doesn’t seem like very many people play by the rules anymore, this will fast track the case to the Supreme Court which is another branch of government that have several justices that are no more than partisan hacks. While I am happy with this particular decision I am well aware that when someone else is in power their abuse may not be for the goal of advancing equality, but weakening workers rights, discriminatory policies, pushing their personal values on others. What happens when a GOP president says hate crimes legislation is unconstitutional, the fair housing act, or any other protections put into place to advance equality. Checks and balances are important, and the executive was never granted the authority to legislate. If the bill is truly unconstitutional the proper channels put in place to make that judgment would do so without the interjections of the Chief Executive. Not only does he choose the judges but know he tells them where he stands personally on rulings? If I was in his shoes I would have gone by the book, that is not to say that I don’t think that DOMA is unconstitutional or that I am not pleased that the president may help to kill it. Why I am pleased that the president supports the community, wants us to be equal, and may move a major impediment towards equality, I am still of the mind that he is wrong and this is not the way to do things. We see governors around the country like in Wisconsin flexing their already very powerful muscles, why strengthen an executives hands by allowing them to take on powers that the framers had not intended. We are a democracy, not a country that is looking for a middle eastern type strong man.

      Feb 24, 2011 at 12:21 am · @ReplyReply to this comment ·
    • reason
      reason

      @the crustybastard: Sent you a response that was flagged maybe it will show up tomorrow. The long and short of it is why I am happy with this particular action, I do think that this was a gross abuse of his power and sets a poor precedent especially on such a contentious issue. Although, in this abuse of power it does show where the presidents heart is which I never doubted.

      Feb 24, 2011 at 12:47 am · @ReplyReply to this comment ·
    • Baxter
      Baxter

      @TwlightoftheDogs: Marbury v. Madison established the concept of judicial review, the idea that the Supreme Court has a say in whether a law is constitutional or not. The concept of judicial supremacy, the idea that the Supreme Court has the final say on constitutionality, wasn’t articulated until Cooper v. Aaron in 1958.

      Feb 24, 2011 at 1:11 am · @ReplyReply to this comment ·
    • ewe
      ewe

      @Michael Letterman: Baby, your bubble will be popped on this blog. Yes we do happen to know you are a charlatan. Have you or have you not noticed that these words came out of the attorney general? You got something to say about that significant fact?

      Feb 24, 2011 at 1:12 am · @ReplyReply to this comment ·
    • B
      B

      No. 49 · reason wrote, “The long and short of it is why I am happy with this particular action, I do think that this was a gross abuse of his power and sets a poor precedent especially on such a contentious issue”

      What abuse of power? The executive branch said it would continue to enforce the law, but would refrain from arguing in court that a specific section was constitutional because there is no legal basis for doing that in the court hearing the case. Refraining from spouting BS in court is not an abuse of power.

      Feb 24, 2011 at 3:10 am · @ReplyReply to this comment ·
    • robert in NYC
      robert in NYC

      I wouldn’t get too euphoric over this. Don’t forget, there are five very bigoted but staunch roman cultists on the SCOTUS bench who don’t believe in equality for LGBT people, especially Scalia, Alito and Roberts. They already overturned precedent in the Citizens United action and I doubt they’d rule on overturning DOMA, their religious beliefs would influence the outcome of that ever happening and its absurd to believe that they would be impartial in a positive ruling.

      Feb 24, 2011 at 8:48 am · @ReplyReply to this comment ·
    • justiceontherocks
      justiceontherocks

      This virtually assures the case will get to the SC. The Justice department determination will be given some weight. 80,000 interest groups will file amicus briefs. A dog and pony show of massive proportions will ensue. No one should ever try to guess how the Supreme Court will rule. Many very wise lawyers have been made to look very foolish doing just that.

      It’s a great and shrewd political move by Obama. Gives more clout to the extreme right wing of the Republican party. He’d be much better off running against a social bigot than a fiscal reformer.

      Please remember that there is a big difference in saying that the Constitution does not allow the feds to define marriage as between a man and woman and saying that non-heterosexuals have full civil rights. One is a huge leap from the other.

      Anyone who says this is an abuse of power just doesn’t know either law or US history.

      Feb 24, 2011 at 9:18 am · @ReplyReply to this comment ·
    • hudson
      hudson

      so, as a Canadian that loves coming to the US on occasion, will this mean my husband and I can fill in only 1 declaration card as a family, or 2 as individuals? (because of the Gov’t’s non recognition of same sex marriage) Its a small inconvenience from our part but it does speak volumes.

      just wondering.

      congrats by the way.

      d

      Feb 24, 2011 at 9:38 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @reason:

      You’ve misunderstood me.

      Please don’t imagine my purpose in pointing out how you were empirically, demonstrably, relentlessly WRONG about this very issue months ago means that I’m the slightest bit interested in your analysis today or in the future. Really.

      Then, as now, you have no idea what you’re talking about, and cannot be bothered to learn from people who do. Thus, I’m not interested in a discussing anything with you, numbnuts.

      Feb 24, 2011 at 10:34 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @hudson:

      It means nothing of the sort. Your marriage will still not be respected in the US.

      The attorney general is merely announcing that the department has no intent to defend with respect to two new cases filed in one federal circuit that has established no precedent as to the proper level of judicial scrutiny. His department also will no longer defend DOMA §3, which probably means at the minimum, they’re abandoning the appeal of their loss in Mass v HHS.

      He also declares that President Obama now believes DOMA §3 is unconstitutional, but intends to still enforce it — which SHOULD be regarded as an outrage.

      Oddly enough, gay people are cheering it.

      Feb 24, 2011 at 10:46 am · @ReplyReply to this comment ·
    • robert in NYC
      robert in NYC

      Hudson….you won’t be able to check the declaration card under “family”, but see my response to No. 57 below on a related issue.

      No. 57, actually any same sex marriage performed outside the U.S. as well as those in the five states that allow it, would be recognized in those states both domestic and foreign and in New York which currently does not have marriage equality but without any benefit at the federal level, sadly. Elsewhere in the country, no.

      Feb 24, 2011 at 1:07 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @robert in NYC: Given that the president has stated that he intends to enforce §3, and given that the feds control borders and immigration, and given that his question regards a border and immigration issue, my answer is accurate.

      Feb 24, 2011 at 2:13 pm · @ReplyReply to this comment ·
    • TwlightoftheDogs
      TwlightoftheDogs

      @Baxter: You are wrong, but what’s the point. This is the internet.

      Feb 25, 2011 at 12:54 am · @ReplyReply to this comment ·
    • dvd-junkie
      dvd-junkie

      I wonder what time exactly Boehner would consider appropriate to adress this issue.

      Feb 27, 2011 at 4:45 am · @ReplyReply to this comment ·
    • robert in NYC
      robert in NYC

      No. 62, its NEVER time for any republican to address this issue because they just don’t believe we should have full equality. Begs the question, since the party is against same-sex marriage, among other things, why would any sane gay man or woman vote for them year after year when their party persistently votes against them and their rights? Is it just not important to them? I guess not. During their conventions, I’ve always noticed that the leader of the Log Cabiners is never allowed to address those in attendance on equality issues, I wonder why?

      Feb 27, 2011 at 10:56 am · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      You hit the nail on the head Robert there would be as much sense in giving queers equality as there would be for giving any other sexual perversion or deviation (take your pick) equality. Who you choose to have sex with doesn’t make you a special or “protected” group.

      If queerness is your only issue for whom to vote for then I feel sorry for you since neither party will ever take the final step without a general vote and this issue will never pass a general vote. The compromise is domestic partnership or other such desigination and until the queer population accepts this we will remain on opposite sides of the issue.

      Feb 27, 2011 at 7:51 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      Don’t take Michael Letterman’s bait!

      Feb 28, 2011 at 1:19 am · @ReplyReply to this comment ·
    • Maverick83702
      Maverick83702

      Where in our Constitution does it give the president the power to choose which laws are Constitutional or not? Sounds like he IS a proponent of “nullification” which he’s since declared unconstitutional against those NOT in favor of implementing ObamaCare. Talk about 1984 “newspeak” being alive and well in the White House. Has he done away with the separation of powers too now? WOW! Let’s see… the president, the Supreme Court and even the U. S. Congress all wrapped up into one body. Isn’t that a dictatorship. His oath of office is to defend the laws of the United States… PERIOD. If he feels a law IS unconstitutional he can file suit in federal court like any other litigant and work his way through the legal system. Not chicken out by sitting on his hands or writing another executive order.

      Mar 2, 2011 at 10:06 am · @ReplyReply to this comment ·
    • Maverick83702
      Maverick83702

      Where in our Constitution does it give the president the power to choose which laws are Constitutional or not? Sounds like he IS a proponent of “nullification” which he’s since declared unconstitutional against those NOT in favor of implementing ObamaCare. Talk about 1984 “newspeak” being alive and well in the White House. Has he done away with the separation of powers too now? WOW! Let’s see… the president, the Supreme Court and even the U. S. Congress all wrapped up into one body. Isn’t that a dictatorship? His oath of office is to defend the laws of the United States… PERIOD. If he feels a law IS unconstitutional he can file suit in federal court like any other litigant and work his way through the legal system. Not chicken out by sitting on his hands or writing another executive order.

      Mar 2, 2011 at 10:06 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Maverick83702: “Where in our Constitution does it give the president the power to choose which laws are Constitutional or not?”

      Article II § 1, Clause Eight.

      Mar 2, 2011 at 10:16 am · @ReplyReply to this comment ·
    • justiceontherocks
      justiceontherocks

      @the crustybastard: Completely correct. That of course is the same clause W relied upon in refusing to defend the constitutionality of a statute.

      Mar 2, 2011 at 10:59 am · @ReplyReply to this comment ·
    • Jaroslaw
      Jaroslaw

      I deal with county courts in my job all day long and I’ve got no doubt that criminal and civil matters are completely different than Constitutional law but….. Even when a law is in place, it is very obvious prosecutors, courts, government agencies do not process every request put in front of them. Does DOJ have a similar prerogative?

      Mar 2, 2011 at 9:35 pm · @ReplyReply to this comment ·
    • Thad Jackson
      Thad Jackson

      I think it’s funny that the guy who’s anti-gay is named “Boehner” ….. I think that’s pronounced BOW-ner…. I’m laughing so hard right now.

      Barack is a fantastic man.

      Mar 2, 2011 at 11:41 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Jaroslaw,

      To answer your question, No the DOJ as a federal agency is charged with proceuting all of the laws of the land this is to be inturpurted as all of the laws passed by the Senate and signed into law by the sitting President. The DOJ is not suppossed to pick and choose which laws they will proceute.

      Mar 3, 2011 at 2:56 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Jaroslaw:

      Yes, by the Department of Justices’ enabling act (the act of Congress that created the department) the department has the RIGHT to defend the government in any case. As head of the department, the attorney general enjoys absolute discretion as to when that right is exercised.

      I know this because I’ve read the enabling act.

      Clearly the troll “Michael Letterman” is unaware of the enabling act and has never read it. Even if he had, I doubt he’d be able to “intrupurt” it.

      Recognizing that the AG may not exercise his right to defend, Congress subsequently passed an act requiring the AG to inform Congress whenever he chooses not to defend. That is the purpose of this particular letter from Holder’s office to Boehner’s.

      Mar 4, 2011 at 10:33 am · @ReplyReply to this comment ·
    • Hannah
      Hannah

      Dear Boehner,

      Since you are so concerned about creating jobs and balancing the budget by defunding programs, you should be thrilled to cut funding for defending DOMA and spending it on creating jobs. Works for me. I am a American and I don’t mind this decision at all.

      Hannah

      —–

      Too bad Boehner will never listen to my perspective.

      Mar 6, 2011 at 11:49 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Dear Mr. Boehner, though I highly doubt you read this board and since I will include this message in my email I want to thank you again for your inssitance that the Defence of Marriage Act will be defended at all costs. Also I wish to thank you for moving forward to ensure that this Act will remain a law for a long time to come.

      Mar 7, 2011 at 1:48 pm · @ReplyReply to this comment ·
    • justiceontherocks
      justiceontherocks [Different person #1 using similar name]

      @Michael Letterman: Poor Michael. He’s upset that the guys at the leather bar turned him down again.

      Mar 7, 2011 at 2:16 pm · @ReplyReply to this comment ·
    • Jaroslaw
      Jaroslaw

      #72 Michael, dear, it is not the LAW they pick and choose, it is each CASE which is accepted or declined for prosecution. There isn’t always enough evidence etc. If you think for one minute that anything political or legal is exactly as represented 100% of the time to the public, then you indeed are extremely naive.

      Mar 8, 2011 at 12:10 am · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Jaroslaw, In this case it is about the AD office deciding which LAW’s they will procecute not particular cases. The administration is attempting to make good on promises he made without actually changing exsiting law. Time will show how this will not work as we are perfectly able to pick up the slack on this and provide adequate legal protection to keep the DOMA exactly as it is intended to be.

      Mar 8, 2011 at 11:54 am · @ReplyReply to this comment ·
    • justiceontherocks
      justiceontherocks [Different person #1 using similar name]

      @Michael Letterman: Does your boyfriend know you spend all your time on this site?

      It’s evident you learned everything you know about law from watching “Perry Mason” reruns. Why do you continually make an ass of yourself here?

      Mar 8, 2011 at 12:07 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Justiceontherocks: sorry Justice but only females and queers have boyfriends, I however do have a wife and yes she knows I monitor this and many other sites in my work. I have nothing to fear from doing so. Also sorry to inform you I have never seen “Perry Mason” so I cannot comment on that. What I know is from my education, from life lessons and from my years of work. I’m again sorry you seem to think my words are not acceptable but I believe they are so in reality what you think is immaterial.

      Mar 8, 2011 at 1:56 pm · @ReplyReply to this comment ·

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