Obama Might Think Gay Marriage Ban Is Unconstitutional, But Not Don’t Ask Don’t Tell, So There!

Sure, he may have led — okay, followed — the effort to legislatively repeal Don’t Ask Don’t Tell, and he may have just revealed he believes the Defense of Marriage Act’s ban on recognizing legal gay marriages is unconstitutional, but that doesn’t mean the president and his Justice Department lawyers are going to merge those two beliefs into one happy Let’s All Be Gay Together strategy. Just two days after Obama and Attorney General Eric Holder came down hard on DOMA’s Section 3, DoJ indicated it’s not giving up its DADT fight in court. In fact, it’s taking a new tact.

Filing a brief on Friday with the Ninth Circuit Court of Appeals in Log Cabin Republicans v. United States, DoJ is trying a revised strategy:

Rather than defend the law [DADT] itself as constitutional, the department instead asserted that Congress acted constitutionally in December, when it decided to leave the policy in place even as the Pentagon prepares to abandon it. “[E]nacting this orderly process was well within Congress’s considerable constitutional authority in crafting legislation concerning military affairs,” the department said in its brief. It was far from the same sort of clarion call against anti-gay discrimination issued on Wednesday. Then, the Obama administration dramatically reversed itself by announcing it had decided that DOMA, which bans federal recognition of same-sex marriages, isn’t just bad policy, it’s outright unconstitutional. But the White House just wasn’t willing to say the same about banning openly gay men and women from serving in the military.

Asked what differentiated the DOMA and the DADT decisions, a Justice Department spokesperson told HuffPost that “the constitutionality of DADT must be viewed in light of the special deference courts grant to the military.” In that context, the spokesperson said, the administration’s conviction that laws regarding sexual orientation should be subject to a particularly rigorous legal standard still “does not therefore mean that DADT is unconstitutional.”

See, when anti-gay discrimination is performed by men and women wearing wrinkle-free uniforms and a bunch of bling on their chests, then it’s TOTALLY OKAY. When it’s a bunch of paper shuffling civil servants sitting in windowless offices in government buildings, well then‘s it’s just harsh.

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  • GoodboyPA

    I read their filing to be a PLEA for time to do an orderly process.

    I too am of the opinion (conviction!) that it SHOULD be enough to tell every service member, STOP BIGOTRY, but I am not so convinced of my own infallibility that I cannot defer to their judgment for a SHORT TERM.

    HOWEVER, they ABSOLUTELY MUST halt the discharges permenantly, and they MUST bring justic and restitution for lost severance benefits and for claims for repayment of training costs.

    If DADT was bad policy and bad discrimination, then as you work to FORMALIZE it’s end then you MUST stop the harm and seek to redress it.

    That, Mr President, is JUST AS IMPORTANT as the process for the policy implentation. And I truly HOPE that the appeal’s court bitch slaps you if you do not correct these wrongs.

  • kernelt

    Why are we even care? DADT is done, we won there and now it’s time to move on to the next case DOMA..
    Anyone can say what they want about something that’s pass as history..

  • Gray Goose

    That’s it. I hope that the President decides from this point on to do absolutely nothing more in the struggle for equality. You people are never satisfied. With everything else going on in the world right now, and with the incredible odds he has against him, I am happy that the Administration and congress were able to repeal DADT and that the Administration will no longer defend DOMA. I mean, lets face it, the man can’t even take a shit without the Republicans being all over him, and now Democrats. And his wife, she can’t even be First Lady without being attacked by bigots on the right and the Fashion Gestapo on the left. It is times like this that make me wish McCain would have been elected, I suppose that would have been so much better for some of you.

  • GoodBoyPA

    @Gray Goose: I certainly hope you are not including me in that comment. My comment is very much to give him the benefit of the doubt, but to hold his feet to the fire to stop (now!) with the discretionary authority he ALREADY has, even before the repeal is finalized. He already has the authority, why ruin more lives? And stop sending letters to DADT dischargees demanding repayment of signing bonuses and so forth when the separation was against their will to begin with.

    If he does not do THAT, then I think the Appeals Court should tell him “wrong is wrong. stop the wrong that you’ve already admitted is wrong.”

    But they may have stopped already (it would have to be very recent as Dan Choi got a bill for $2500 just a few weeks ago), but I would be THRILLED to find out that this has already stopped and that the severance benefits have been restored to what other dischargees receive.

    Mr Goose, I worked for his campaign, as did many here, and I must tell you that I have finally found the president acting like the man I campaigned for. I am very much happy with this president now. I was OVERWHELMED with gratitude for what they announced on Wednesday, and I don’t think we can comprehend the totality of what the announced decision means.

    As for the Republicans and Teabaggers who are slinging every bit of “shit” at him that they can, please don’t get me started on that. I have never held any political situation with as much contempt as what they are doing to the country (and to their individual states) right now.

  • Right Wingers Are Socioptahs (John From England)

    There’s a lot more important things then gay people! Be god damn lucky you have a president who is willing to do ANYTHING for you and therefore will be gone by 2012.

    Silly man! The gays took down Obama!

  • Chadiva

    “See, when anti-gay discrimination is performed by men and women wearing wrinkle-free uniforms and a bunch of bling on their chests, then it’s TOTALLY OKAY.”

    That’s a gross misrepresentation of the legal logic presented.

  • RJ


    This blog post is intellectually dishonest and misleading – almost intentionally written to spark conflict.

    The approach to DOMA and what’s going on after the shaky repeal of DADT are two different things, two different issues.

    To complain and subject to such distasteful imagery others in this country for the sake of spouting the message of this blog post is unethical.

    For the first time in American history, we have a president who is on our side, despite navigating muddy waters of an economic recession, massive partisan divide, and two wars. Amidst all of this conflict, we saw DADT repeal, inclusion of sexual orientation in federal hate crime mandates, and an actual declaration that the president recognizes that DOMA is unconstitutional.

    Would you rather have McCain?

  • celebrator

    Queerty is like the Doritos I’m so addicted to. I know it’s bad for me and I hate myself afterward, but I keep going back to it.

    But seriously, your site deserves to be hacked into and disabled. Supposedly, you care about gays, and yet you do everything you can to separate them from a leader who has shown the ability to strategize and give them victories.

    And I WILL QUIT you, sooner rather than later.

  • Jeffree

    @Celebrator: This site may not be perfect but it allows us almost complete liberty 2 express our opinions. Look at Bil or Pam’s place when it comes to folks posting & you ‘ll see that for every 8 person commenting here, there’s just one posting there…

  • TTime

    Celebrator : You expect integrity here? This is the blog that virtually said Don Imus deserved his cancer for his nappy-headed hos statement. This about a man who’s extensively helped out kids (of all races) suffering from cancer. Then when Imus came out in favor of gay marriage- no mention. It’s like a trashy bad habit, this blog, I know.

  • TTime

    HOWEVER, I will say this blog seems to be aware of its trashiness. Blogs like Towleroad, Pam’s, Bilerico are just as awful, but like to pretend they have some kind of moral standing.

  • Cam


    Give it a rest, you are so into your battered wife syndrome that you can’t see whats right in front of your face. The left and the gay community applied a huge amount of pressure and FINALLY the Dems did something.

    I don’t call somebody a hero for being politically forced into doing the right thing. I call them a politician that I will vote for.

  • the crustybastard

    To: Editor
    Re: “In fact, it’s taking a new tact.”

    The expression is “taking a new tack.” It’s a nautical term, meaning “to change direction.” This idiom is not new. I believe sailing has been around for a few decades, at least.

    Tact is social appropriateness or politeness; ergo, “taking a new tact” doesn’t even vaguely make sense.

  • the crustybastard

    @kernelt: “Why are we even care? DADT is done…”

    Wrong. 10 USC §654, the federal law banning gays from the armed forces, remains in full legal effect.

    What Congress passed and the president signed was the Lieberman Amendment, which provides a route for the CONDITIONAL repeal of 10 USC §654.

    Unless and until the conditions are met, 10 USC §654 remains law.

    Here is the pertinent clause:

    (c) NO IMMEDIATE EFFECT ON CURRENT POLICY. Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met.If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

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