US govt. to stop defending DOMA in courts

Doesn't the DOJ work for the SCOTUS?

Fight smart, not fair.

Can't you guys just call it the Supreme Court? You're making one of the most venerable courts in the world sound like a ball sack.

I think the idea is to mostly distinguish it from the State Supreme Courts.

No, the Department of Justice is a part of the Executive Branch and works for the President. It includes all of the lawyers that work for the government, both to prosecute federal cases and defend the government, along with the FBI, the Federal Marshals, and that sort of thing.

I wonder why they never seem to spin it as an attempt to fundamentally combat the stereotypes of the gay community being non-committal and promiscuous. I support gay marriage first and foremost because those who pursue it are clearly interested in committed relationships rather than sleeping with a different partner each night.

It's not entirely the gay community's fault; our society has pretty much shaped the gay community by first treating them as outcasts, and sending the message that monogamy is for heteros. If marriage is really as sacred and stabilizing as we say it is, the gay community actively seeking it is the best thing to happen in a long time.

Ah.

Fight smart, not fair.

The 5 geek social fallacies. Know them well.

@Stalko: Any law that curtails somebody's liberties should be subject to the strictest scrutiny. All that talk about "rational basis" and "compelling government interest" makes me wanna puke.

edited 28th Feb '11 5:36:28 AM by SavageHeathen

You exist because we allow it and you will end because we demand it.

Speaking personally, please don't give every single thread in this section a 'government is evil' derail. It's just not really relevant.

edited 28th Feb '11 9:04:31 AM by Chalkos

^Thought I was the only one who noticed that.

This is a thread talking about politics: it's highly relevant.

edited 28th Feb '11 9:13:40 AM by MRDA1981

Enjoy the Inferno...

"Compelling Government Interests" and "Rational Basis Review" are judgespeak for "It's actually a gross civil rights violation, but we want the government to do it anyway".

What's wrong with strict scrutiny?

It's highly relevant on this thread.

edited 28th Feb '11 9:15:39 AM by SavageHeathen

You exist because we allow it and you will end because we demand it.

Here, possibly, as long as it doesn't go too far.

Not everywhere, though.

Why not? Ain't it safer for freedom to assume any restriction is prima facie illegitimate unless proven otherwise?

You exist because we allow it and you will end because we demand it.

<Mod Hat ON>

This is veering seriously toward offtopic. Bring it back to the topic: DOMA, not political philosophy in general.

<Mod Hat OFF>

...if you don’t love you’re dead, and if you do, they’ll kill you for it.

Okay, Freedom rant, blah blah. Almighty Freedom, rah, go team. [spits in corner] You've given no indication as to what your statement has to do with DOMA, anyway. Which side of Almighty Freedom ^(tm) does it fall under, the freedom to have marriage be defined by popular will or the freedom to enjoy the benefits of marriage without intrusion from anyone?

edited 28th Feb '11 9:43:25 AM by Fighteer

"It's Occam's Shuriken! If the answer is elusive, never rule out ninjas!"

The freedom to enjoy the same stuff everyone else enjoys without the fundies getting in the way, of course.

I'm... generally critical of the power of majorities to restrict what outliers can or can't do.

edited 28th Feb '11 9:49:42 AM by SavageHeathen

You exist because we allow it and you will end because we demand it.

You know, when you think about it, this is actually a bad thing...

They aren't defending it, but the Government is still adhering to the letter of the law, and so they aren't actually giving the benefits to same-sex couples unless they sue, and it is declared unconstitutional.

And until they appeal the decisions to the Supreme Court, the law won't actually be struck down (it will be in each district the appeal is brought up in, because they aren't defending it, but not on a national level)... And because of that they can continue on the path of denying coverage under DOMA.

Congress can and will, however, try to defend it all the way up to the Supreme Court, and the administration knows that.

IIRC churches didn't even start blessing marriages until like the 900's. And even then for a while it was only a particularly common practice among nobles.

edited 1st Mar '11 3:36:48 PM by Pykrete

Congress could, but it's not their responsibility. The executive branch is required to defend the laws that Congress passes.

If Obama really wanted to get rid of the legislation, he'd have his lawyers defend DOMA in practice but not in spirit, to get it to the Supreme Court and have it overturned.

But saying "I won't defend it" while at the same time not giving the benefits to people because the law is still in effect is something you'd expect from Bush... not Obama.

The case is certworthy, and if the government basically pleads no contest about it, that law will be overturned in a heartbeat.

Obama doesn't want to actively antagonize moderate and conservative Dems, and he wants to get rid of DOMA. If he has reservations about constitutionality, the right thing to do is not defending it.

Cm'on, guys, this makes a whole lot more sense than the standard Obama decision.

edited 1st Mar '11 3:42:33 PM by SavageHeathen

You exist because we allow it and you will end because we demand it.

But you don't really understand how the US court system works, do you? If a lower court says a law is unconstitutional, it only applies to those who are in that lower court's jurisdiction.  ^Granted

It's not until it's appealed to the Supreme Court that it actually is taken out at a national level.

If the Obama administration does not appeal the verdict from a lower court, the law still applies everywhere else...

That's why not defending the law hurts more than it helps... Especially since same-sex partners are not getting benefits now (since Obama, while not "defending" the law, is still adhering to it), and won't be until the law is taken down by the Supreme Court (or repealed by Congress, which isn't going to happen).

edited 1st Mar '11 5:16:33 PM by Swish

Nope. It is required to enforce them, not to defend them, and indeed it continues to enforce them. There is no constitutional responsibility incumbent upon the executive branch to defend laws in court. That responsibility is one which is typically delegated to it by the legislative branch, but the prerogative to do so remains with the legislative branch.

Further, the executive branch of the government has informed the judicial branch of the government that it supports removal of the law. This helps in one particular, tricky respect: judicial deference. Normally, the judicial branch tends to be somewhat reluctant to strike down laws and actions of the other branches without really compelling reasons. However, when at least one of the other branches agrees that it needs to happen, it becomes much more likely that the judicial branch will rule the law unconstitutional. This has been the case in civil-rights issues in the past.

There's one other thing to keep in mind: should Congress agree to defend the law (as it seems likely that it will), then it will face not only the burden of showing why DOMA is constitutional (the burden the administration already faced and obviously did not believe was the case), but of showing why the administration is wrong in its appraisal of the Constitution. They will also face an uphill battle getting the courts to review the issue in light of the rational basis test.

Finally, should Congress bring suit, then it will be forced to defend itself using the legislative record, which is full of bitter and bare-faced anti-gay sentiment. Historically, the presence of this sentiment has tended to turn the opinions of judges and legislators alike towards the pro-gay side. They'll be facing an uphill battle in more ways than one, in short. And that's not even getting into the political implications of what the Democrats will most certainly frame as abandoning the nothing-but-jobs rhetoric in favor of pandering to the hard right!

edited 1st Mar '11 7:43:34 PM by Chalkos

Swish: But if NOBODY is making the case for the constitutionality of DOMA, as long as DOMA is brought up in lower courts it'll die in lower courts.

It only takes one fundie lower court judge to bring the case straight to the SCOTUS, though. Any married gay couple in, say, Oklahoma willing to piss some fundies off?

edited 2nd Mar '11 1:08:18 AM by SavageHeathen

You exist because we allow it and you will end because we demand it.