Wait… So… The DOJ Has Suddenly Decided To Start Defending DOMA Again?

We nearly pooped a gold brick when we heard that a federal bankruptcy court declared DOMA unconstitutional. Turns out the Department of Justice ain’t having none of that and have decided to appeal the bankruptcy court’s ruling… for some unknown reason. We guess it’s a slow week at the DOJ?

The Washington Blade’s Phil Reese reports:

In a surprising move, the United States Trustee for California — an agent representing the United States and the Department of Justice in Bankruptcy court — has appealed a ruling in the United States Bankruptcy Court of the Central District of California which found Section 3 of the Defense of Marriage Act unconstitutional…

According to The Daily Kos, the filing by the U.S. Trustee addressed Justice’s policy to not defend DOMA:

“Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.”

Just throw this log onto the bonfire labelled “Obama’s contradicting views on marriage equality.”

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  • JHW

    I don’t think they want final court judgments invalidating DOMA scattered around the country: they want a definitive Supreme Court ruling. But it’s still hard to figure out what their plans are here. I can’t imagine they’d defend a position they’ve affirmatively renounced. Do they expect a BLAG intervention? I can’t see why they would, since I think BLAG already said it wouldn’t intervene. Maybe they expect the court to rely on DOMA defenses via amici curiae.

  • Gavin

    Anyone got a link to the filing? Having trouble finding one.

  • Gavin

    Completely talking out of my ass here, but it looks like the US Trustee for the Central District of California is Peter Anderson, who was appointed in 2006 (Bush era).

  • Elloreigh

    “Wait… So… The DOJ Has Suddenly Decided To Start Defending DOMA Again?”

    It was never stated that DOJ would stop defending DOMA in its entirety. They only said they would stop defending challenges to Section 3 of DOMA, and then only 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.”

    The scope of what they won’t actually defend is tiny compared to what they will.

  • JHW

    @Elloreigh: That’s not really correct. The DOJ said it would not defend DOMA Sec. 3 anywhere; it stopped defending it even in the circuits where previously it had said that binding precedent called for rational basis scrutiny. In this very case, which is a challenge to DOMA Sec. 3 (as applied to same-sex couples filing for bankruptcy), the DOJ did not defend the law.

  • the crustybastard

    If a law is unconstitutional, it is — BY DEFINITION — unenforceable.

    If the president is enforcing a law he knows violates the Constitution, he’s violating his oath of office.

    I’m so sick of this gutless asshole and his fence-sitting bullshit.

  • Ted B. (Charging Rhino)

    Thrown under the bus once again.

    And THIS is the “fierce advocate” that the G/L community mortgaged it’s unquestioning soul to?

    I can understand if you can’t bring yourself to support a GOP candidate; but at-least don’t give your hard-earned cash to Obama’s campaign in 2012. Find a gay-friendly or openly-gay local, county or state candidate and make it mean something.

  • Brutus

    “[T]he Blade article was slightly skewed. The administration will not be defending DOMA, he said. Instead, the DOJ was required to file paperwork that would allow the House of Representatives to intervene since they have decided to defend DOMA. Nosanchuk was definite that the department would not be defending the constitutionality of Section 3 of DOMA, but were obligated to continue complying with the law while it remains on the books.”

  • Michael

    Yeah, this article doesn’t make a lot sense and it seems Queerty is giving us some half-ass reporting on the matter without giving us all the facts.

    Gee, imagine that.

  • Elloreigh

    @JHW: From the letter to Boehner: “If
    asked by the district courts in the Second Circuit for the position
    of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of
    our interest in providing Congress a fulland fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.”

    Note especially the last sentence. Elsewhere, they say that they’re going to inform the courts of their belief that the standard should be heightened scrutiny, and won’t be defending Section 3. In other words, it’s incoherent and confusing. They’re basically saying they won’t defend it, except when they will, based on whether they can argue a rational basis defense or have to take a position on scrutiny, at which point they’ll take the position that it should be heightened scrutiny and that DOMA Section 3 is unconstitutional.

    It’s called having your cake and eating it, too. What is weird in this instance, is that the lower court ruled on heightened scrutiny, right in line with what Obama & Co. claim they wanted.

    So why are they now appealing? I’ve quite given up trying to figure out why this administration takes any of the actions it does when it comes to gay equality.

  • Elloreigh

    @Brutus: Ah, now it becomes clearer – thanks for that!

  • Elloreigh

    So can someone answer this: Even though DoJ isn’t defending the law, are they really obligated to take action so that Congress can? Or can Congress do that on their own?

    What it’s starting to look like to me is a case of Boehner said he wasn’t interested in defending this particular case, so to embarrass him the Obama admin is taking the steps necessary for the case to be appealed.

  • CJ

    I agree, Obama is violating his oath of office by defending DOMA. He should be reading the US Constitution and following what IT says vs. following polls and whichever way the wind is blowing that day for him. This guy seems to be all over the place on this issue. He’s trying to please everyone and NO words that come out of his mouth make anyone happy.

  • DavyJones

    @the crustybastard: It’s not up to the Executive branch to decide on which laws are Constitutional, that power belongs to the Judicial branch. So while the President can decide not to defend a law (as he has); he is still bound to enforce the law until the Judicial branch declares it universally unconstitutional (which has not yet happened); or the Legislative branch repeals the law (which also hasn’t happened).

    As for this specific case, I’m not sure if you can really dump this directly on Obama, I doubt he, or his direct staff where even aware of this filling until it hit the presses…

  • CJ


    He swears to uphold the US Constitution, not illegal laws that are subordinate to it.

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

  • DavyJones

    @CJ: That’s correct, but the Constitution does not give him the authority to determine what laws are unconstitutional. He can’t decide he doesn’t want to enforce a law because he believes it is unconstitutional; the Judicial branch must rule it unconstitutional first

  • Cam


    “I don’t think they want final court judgments invalidating DOMA scattered around the country: they want a definitive Supreme Court ruling.”

    Sorry, but I’m tired of people trying to defend the White House’s actions by saying “Well maybe they think……..”

  • the crustybastard


    Please cite where the Constitution bars the POTUS from making a determination of Constitutionality. Good luck, it ain’t there. Also not there: a Constitutional provision allowing the Judicial branch the sole power to determine Constitutionality. They granted that to themselves in Marbury v Madison.

    However, as the executive, POTUS has every Constitutional right and power to execute laws at his discretion. He is not the mere factotum or errand boy of some other branch. The branches are co-equal.

    That said, under the principle of Rule of Law, nobody — not even the POTUS — is above a duly rendered verdict. Obama didn’t make any claim the federal court was incompetent to render a verdict. In fact, by participating in the trial, he expressly and implicitly accepted the court’s jurisdiction. The federal court said the law was unconstitutional. Now Obama finally agrees that it’s unconstitutional. Thus, it CANNOT be enforceable — even pending the ridiculous appeal he shouldn’t have brought in the first place.

    By logical extension, you would say that if Congress passed a clearly unconstitutional act providing that “no persons shall assemble for the purpose of petitioning for redress of grievances,” POTUS is nonetheless obligated to enforce that unconstitutional law unless and until SCOTUS makes a determination.


    Finally, “universally unconstitutional”? LOL. What the hell is that?

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