DOJ to stop defending DOMA

[Pint0 Xtreme]

LA Times

Gay marriage: Obama administration won't defend part of marriage act
In a key shift on gay rights, the administration says a section of the Defense of Marriage Act is unconstitutional as applied to gay couples who are legally married under state law. The administration vows not to defend the law against two lawsuits brought by same-sex couples.

Reporting from Washington — The Obama administration, in a major shift on gay rights, says it will not defend in court the federal law that bars the government from recognizing same-sex marriages and giving equal benefits to gay couples.

"After careful consideration, the president of the United States has made the determination that Section 3 of the Defense of Marriage Act as applied to same-sex couples who are legally married under state law, violates the equal-protection component" of the U.S. Constitution, announced Atty. Gen. Eric Holder.

Holder said the Justice Department now agrees with that claim.

In his legal analysis, discrimination against gays "warrants heightened scrutiny," not general acceptance. "There is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today," he said. He also cited "recent evolutions" of the law in courts and state legislatures recognizing the principle of equal treatment for gays and lesbians.

Until now, the Obama administration had taken the view that it had a duty to defend all laws, including discriminatory measures, so long as they could be justified as constitutional. In this instance, the administration could see no "reasonable arguments" to defend a law that denies equal benefits to legally married gay couples, he said.

The administration said it will not defend the law against two suits brought by same-sex couples from New York and Connecticut.

The administration's new legal policy is highly significant because it says that discrimination against gays is generally unconstitutional, unless the government has a strong reason to justify its policy. Until now, the government's official position was that official discrimination based on sexual orientation was generally constitutional.

However, the practical effect of Wednesday's announcement appears to be limited to those states in which gays can marry legally. The lawsuit brought by the gay couples argued that they were entitled to the same benefits as other couples because they were legally married in their states.

Holder said the government now agrees with that claim.

White House Press Secretary Jay Carney said the president doesn't believe the law is constitutional, though his own personal view on gay marriage is still evolving.

"He's grappling with the issue," Carney said Wednesday afternoon. "But I want to make a distinction between his personal views" and the legal decision not to defend the law.

[Thanas]

Good for Obama.

[Edi]

About time. He should have done that a lot earlier, but at least the DADT repeal is already in the bag, so that gives him a stronger position in this fight, which can't hurt.

[Elfdart]

It's a start. Now let's see them stop defending torture and other police state measures.

[Pint0 Xtreme]

This administration feels like a hit and miss. I wonder what prompted this change of policy. I know the LGBT activist community has been putting pressure since the first year of Obama's office. Have there been large scale demonstrations against the administration's treatment of civil liberties?

[Simon_Jester]

There may not be a strict cause-effect, stimulus-response relationship at work here. This may be something that's been boiling away under the surface for some time, internal debate with "why are we defending this nonsense" balanced against "we need more homophobic supporters!"

Finding a single event, such as a string of LBGT protests, that provided the tipping point may be difficult or impossible.

[Pint0 Xtreme]

There may not be a strict cause-effect, stimulus-response relationship at work here. This may be something that's been boiling away under the surface for some time, internal debate with "why are we defending this nonsense" balanced against "we need more homophobic supporters!"

Finding a single event, such as a string of LBGT protests, that provided the tipping point may be difficult or impossible.

While it may be difficult to determine a tipping point, it's certainly no secret that the president has been protested, lobbied, mailed and constantly harassed over his administration's DOJ decisions on LGBT rights. I'm just curious if there was anything resembling a movement to put pressure on him to change his direction when it comes to civil liberties. If there aren't any significant external pressures on Obama to do so, then I'm afraid he won't have the gumption to change anything in that regard. Even if the DOJ's change was due to mostly an internal affair, it's possible that the external pressure from LGBT groups were affecting it (ie. "we can't rely on homophobic voters and we're continually losing support from the progressive demographic").

[The Duchess of Zeon]

I think the simple answer is that Jerry Brown's refusal to defend Prop 8 didn't cost him his governor's campaign in California, so Obama feels that the measure is a nice sop to throw that won't hurt his own reelection chances.

[General Zod]

I think the simple answer is that Jerry Brown's refusal to defend Prop 8 didn't cost him his governor's campaign in California, so Obama feels that the measure is a nice sop to throw that won't hurt his own reelection chances.

Doubtful. Local politics rarely translate well on the national level.

[SirNitram]

I wouldn't be surprised if this was just a thing boiling and building, growing stronger with each group protesting. I strongly suspect the lack of appointees to DOJ and the GOPs 'Burrowing' over Bush's years also stunted it.

Still, about time.

[Patrick Degan]

This administration feels like a hit and miss. I wonder what prompted this change of policy.

Helps to secure a voting bloc he'll need for 2012, I should imagine.

[Alyrium Denryle]

This administration feels like a hit and miss. I wonder what prompted this change of policy.

Helps to secure a voting bloc he'll need for 2012, I should imagine.

"Hmmm... Perhaps I should give the queers something so they dont stay at home, or worse, vote republican out of spite come 2012"

[Todeswind]

On the one hand I'm extremely pleased that gay rights are getting proper support from the administration.

On the other hand the implications of the DOJ being ordered by the president not to defend a part of the bill he doesn't like feels a bit... wrong. It's like the signing statements Bush used to write on bills unilaterally declaring certian parts of a bill as not being enacted.

I'm not even sure if its legal for the DOJ to decide not to defend a law... is there any precedent that would allow them to do that? The point of the DOJ is to defend the laws... not to pass judgement over if they're ethical or not. It's not really the job of the Executive branch either, its very clear in the constitution that the arbiters over the legality of laws is the Legislative and Judicial branches.

If the executive starts deciding that certain laws "just don't count" it undermines the entire point of having a system of checks and balances. Moreover its a gross breach of ethics for a lawyer not to present their client with the best defense possible and in this case the DOJ's client is the laws as they were written. If the laws get overturned in court that's all well and good but it seems like choosing to do this could potentially be very problematic in the long run for the Obama administration.

[General Zod]

I'm not even sure if its legal for the DOJ to decide not to defend a law... is there any precedent that would allow them to do that?

Quite a few. This isn't the first law Obama has refused to defend.

The point of the DOJ is to defend the laws... not to pass judgement over if they're ethical or not. It's not really the job of the Executive branch either, its very clear in the constitution that the arbiters over the legality of laws is the Legislative and Judicial branches.

The DoJ's job is to rule whether or not a law is constitutional. Not "just" defend them.

If the executive starts deciding that certain laws "just don't count" it undermines the entire point of having a system of checks and balances. Moreover its a gross breach of ethics for a lawyer not to present their client with the best defense possible and in this case the DOJ's client is the laws as they were written. If the laws get overturned in court that's all well and good but it seems like choosing to do this could potentially be very problematic in the long run for the Obama administration.

Do yourself a favor and go read this first. You're clearly unfamiliar with the reasoning behind this ruling. http://www.nytimes.com/2011/02/24/us/24 ... ml?_r=1&hp

[Todeswind]

Fair enough. Thanks for the info.

[eion]

This administration feels like a hit and miss. I wonder what prompted this change of policy.

Helps to secure a voting bloc he'll need for 2012, I should imagine.

"Hmmm... Perhaps I should give the queers something so they dont stay at home, or worse, vote republican out of spite come 2012"

Give us enough crumbs, we might be able to make a whole cake out of it. Honestly, I'd prefer if he did it for moral reasons, but if he's doing it for political reasons, it still amounts to one more blow to institutionalized homophobia in the U.S.

[Molyneux]

I'm glad to have one fewer thing to be pissed off at Obama about.

[GrandMasterTerwynn]

This article should read "President tries to polish liberal cred. Throws bone to progressives." That's really all this is, is a bone. A little something to distract the Democratic base from the fact that the sitting President has spent the first half of his administration pretending he's Dubya in disguise. He may not personally approve of LGBT rights, but he knows he needs them to not stay home, or vote Green Party, in 2012 (I can't see them voting GOP out of spite. A Republican president would be falling all over himself looking for ways to actively disenfranchise the LGBT bloc.)

[Pint0 Xtreme]

It may also be that the wedge issue is losing its edge and Obama is starting to realize it

Gay Marriage Seems to Wane as Conservative Issue
By MICHAEL D. SHEAR and SHERYL GAY STOLBERG
Published: February 24, 2011

WASHINGTON — President Obama’s decision to abandon his legal support for the Defense of Marriage Act has generated only mild rebukes from the Republicans hoping to succeed him in 2012, evidence of a shifting political climate in which social issues are being crowded out by economic concerns.

The Justice Department announced on Wednesday that after two years of defending the law — hailed by proponents in 1996 as an cornerstone in the protection of traditional values — the president and his attorney general have concluded it is unconstitutional.

In the hours that followed, Sarah Palin’s Facebook site was silent. Mitt Romney, the former governor of Massachusetts, was close-mouthed. Tim Pawlenty, the former governor of Minnesota, released a Web video — on the labor union protests in Wisconsin — and waited a day before issuing a marriage statement saying he was “disappointed.”

Others, like Newt Gingrich, the former House speaker, and Haley Barbour, the governor of Mississippi, took their time weighing in, and then did so only in the most tepid terms. “The Justice Department is supposed to defend our laws,” Mr. Barbour said.

Asked if Mitch Daniels, the Republican governor of Indiana and a possible presidential candidate, had commented on the marriage decision, a spokeswoman said that he “hasn’t, and with other things we have going on here right now, he has no plans.”

The sharpest reaction came from Mike Huckabee, the former Arkansas governor, in an interview here during a stop to promote his new book, who called the administration’s decision “utterly inexplicable.”

A few years ago, the president’s decision might have set off an intense national debate about gay rights. But the Republicans’ reserved response this week suggests that Mr. Obama may suffer little political damage as he evolves from what many gay rights leaders saw as a lackluster defender of their causes into a far more aggressive advocate.

“The wedge has lost its edge,” said Mark McKinnon, a Republican strategist who worked for President George W. Bush during his 2004 campaign, when gay marriage ballot measures in a dozen states helped turn out conservative voters.

Mr. Obama’s move provoked some outrage, especially among evangelical Christians and conservative groups like the Family Research Council. In a statement Wednesday, Tony Perkins, president of the council, condemned the president’s decision as pandering.

But Republican strategists and gay rights activists said on Thursday that the issue’s power as a political tool for Republican candidates is diminishing. While surveys suggest that Americans are evenly divided on whether the federal government should recognize gay marriages, opposition has fallen from nearly 70 percent in 1996.

Prominent Republicans like Dick Cheney, the former vice president, and Barbara Bush, daughter of the former president, have defended the right of gays to marry. And Mr. Obama has been emboldened by the largely positive response to his recent, and successful, push for Congress to repeal “don’t ask, don’t tell,” the military’s ban on gays serving openly.

At the same time, the rise of the Tea Party movement, and the success that Republicans had last year in attacking Democratic candidates on economic issues, has pushed the debate over abortion and gay rights to the back burner.

“I don’t think this is the issue that it once was,” said John Feehery, a Republican strategist. “I think that the economic issues are so big that this one pales in comparison.”

In his first two years in office, Mr. Obama drew criticism from gay rights advocates who thought he was dragging his feet on their issues. Those same advocates see the shift as evidence that with an eye on the 2012 campaign, the president has calculated that the benefits of responding to his base outweigh the risks of upsetting conservatives who wouldn’t be voting for him anyway.

Among them is John Aravosis, the founder of Americablog.com, who in a 2009 blog post called the administration’s first legal brief in a Defense of Marriage Act case “despicable” and “homophobic.” Mr. Aravosis said on Thursday he is “much happier” with Mr. Obama, adding: “I think the gay community got to him. I’m not convinced we got to his heart, but I think we got to his political head.”

Others, like Kerry Eleveld, editor of EqualityMatters.org, a new Web site, say Mr. Obama appears to be evaluating the politics of gay rights issues differently since the positive response to the don’t ask, don’t tell repeal from people on the political left, many of whom have criticized him over issues like health care, climate change and immigration.

“He got this big bump from it in terms of the progressive base, and didn’t get a whole lot of heat, and I think that has given him a little more heart in feeling like L.G.B.T. issues aren’t as toxic as a lot of people have been painting them for the past 20 years,” she said.

While Mr. Obama has changed his legal position on the Defense of Marriage Act, his personal views on same-sex marriage — he opposes it, but favors civil unions — have not changed, the White House says.

A big question is whether they will. Mr. Obama has said his views are “evolving,” and some expect he will announce his support for same-sex marriage as he campaigns for re-election. But that could complicate Mr. Obama’s efforts to appeal beyond his liberal base.

“It’s still part of Obama’s record now,” said Kevin Madden, a Republican strategist, who has advised Mr. Romney. “It’s one where it looks like he’s changing his position.”

Ashley Parker contributed reporting.

Also, In the DOJ briefing, it is mentioned that they think the cases in question should use heightened scrutiny when considering the constitutionality of DOMA. In other related news, Maryland's Senate just passed a marriage equality bill. It is looking to become the next state to grant equal marriage rights. All around, this week is a good week for LGBT rights.