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Obama Kills DOMA?

The Obama administration will no longer defend the Defense of Marriage Act in court. This is bad.

President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.

Attorney General Eric H. Holder Jr. sent a letter to Congress on Wednesday saying that the Justice Department will now take the position in court that the act should be struck down as a violation of same-sex couples’ rights to equal protection under the law.

“The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law,” a crucial provision of the act is unconstitutional, Mr. Holder wrote.

The move is sure to be welcomed by gay-rights advocates, who had often criticized Mr. Obama for moving too slowly in his first two years in office to address issues that concern them. Coming after the administration successfully pushed late last year for repeal of the military’s ban on gay men and lesbians serving openly, the change of policy on the marriage law could intensify the long-running political and ideological clash over same-sex marriage as the 2012 presidential campaign approaches.
Ya think? Gay marriage just went to near the top of the list of issues that Republican Presidential candidates will be facing.

So I guess now the Justice Department only enforces the laws that the President likes?

Ya' know I'm starting to think Obama might be like reeeeeaaaaaaally liberal. Who'd a thunk it?

I'll keep updates coming on this.

Update #1: Maggie Gallagher, Chair of the National Organization for Marriage responds on Fox. She seems stunned but also said that this could be good news since the Justice Department was tanking the fight anyway. Look for the House to get involved in this.

Update 2: Bench Memos has solid info and interesting angles on all this.

Update 3 by Patrick.

Can somebody verify if either one of the Oaths Obama took included the language "I do solemnly swear that I will faithfully execute the Office of President of the United States for only those Laws I like. "??

Separation of powers is not his strong suit.

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Sawyer said...

Obama is an unmitigated disaster for the U.S. He's a domestic disaster, an economic disaster, a moral disaster, a foreign policy disaster. Heck, if he's not constitutionally qualified for office, he might even be a legal disaster whose presidency initiates a major constitutional crisis.

Tobias said...

With any luck, this will prove to be yet another complete lack of understanding of the values of average Americans...and he'll have much more weighing against him in 2012.

BobRN said...

I don't see what the problem is.

I mean, think about how much easier it will be for the Enlightened One to get things done without that lumbering Congress slowing up the passage of all of Obama's wonderfully wise policies and that pesky Supreme Court getting in the way of enacting Obama's wonderfully wise policies taking their sweet time to consider their constitutionality and, heaven forbid, having the unmitigated gaul of actually declaring the Enlightened One's policies unconstitutional?

Isn't this what Thomas Friedman recommended a few months ago when he dreamily imagined all that could be accomplished if we could only have a government like China's for a little while? I guess all those critics of Obama were wrong (duh, as usual) -- the Enlightened One IS teachable after all!

Anonymous said...

Why would the President not have the right to use discretion in this matter? This seems exactly like separation of powers.

Paul Zummo said...


Congress does not have its own version of DOJ to uphold the laws it passes. It has been a consistent tradition that DOJ defends all laws passed by Congress so long as there is a reasonable constitutional justification. To do otherwise is to permit each new administration a retroactive veto of all legislation. In other words: chaos.

Anonymous said...

If you look back at the civil and women's rights movements many conservative resisted them. It seems fairly clear homosexuals will get their rights eventually, especially they way the MTV and Lady Gaga crowd (young people in general) accept homosexuality. It seems to be a generational issue. As more old people die, they younger generation will be more accepting and give homosexuals their rights. "History doesn't repeat itself, but it rhymes". Mark Twain

Mary De Voe said...

Gay lawsuit for Marriage has no legal standing in a court of law because practicing gay behavior repudiates "the laws of nature and nature's God" ...from the Declaration of Independence. In repudiating "the laws of nature and nature's God", gay persons invalidate their citizenship and must be treated as aliens or non-citizens in a court of law.

Mary De Voe said...

Obama is demanding "equal protection under the law" the gays have broken. When one gets a speeding ticket, one cannot sue to have the speed increased to void the crime. Let practicing homosexuals first respect our laws before they apply to have their citizenship invoked, as it now stands, people who reject our founding principles reject their citizenship in our country

Anonymous said...


the "reasonable constitutional justification" seems to be what Obama and Holder Jr deny, and from that perspective I can understand their decision. Chaos may result if it became commonplace, but that is no different from the sort of stoppage that occurs when the President and Congress can't agree on a budget. The solution in either case is basically elections and impeachment. The need for Congress to approve the President's appointments a further restraint on the sort of chaotic power you envision.

Anonymous said...

*exercises a further restraint

Anonymous said...

Watch this will play out in the courts. The courts ultimately ruled for desegregation amongst black and white, and helped push along women's right, will ultimately give homosexuals the right to marry.

Our nation has a history of civil and equal rights. However, the Christians are becoming labeled hateful and bigots for rejecting this movement. Conservative christians are becoming the KKK with respects to gay rights, not a great place to go down in history.

Renee said...

Marriage laws are not about segregation, rather bringing together mom and dad into one household. Even gay people have a mom and dad. We want to encourage a mom and a dad to get along, hence we acknowledge marriage and support it.

Even if you have no qualms with homosexuality or homosexual behavior, the objective fact is that you don't get pregnant from sexual behavior with someone of the same sex. I still hope that they teach children in sex eduction, where babies come from.

Yes, Christians may be labeled as hateful, but it won't be the first time we were fed to the lions.

Paul Zummo said...

the "reasonable constitutional justification" seems to be what Obama and Holder Jr deny, and from that perspective I can understand their decision

The idea that there are no reasonable constitutional justifications for DOMA is incredibly far-fetched. The standard here is akin to a grand jury's charge - they don't have to find that the suspect is guilty, only that there are sufficient grounds for trial. Similarly, the AG need not agree that the legislation is indeed constitutional, only that there are "reasonable" arguments in its favor. I doubt you'd find any honest constitutional scholar who would say that there are absolutely no reasonable arguments in favor of DOMA, even if they conclude that it is in fact constitutional. I think Roe was an abomination of Justice, but even I concede there are reasonable arguments - just completely wrong ones - in favor of abortion rights.

but that is no different from the sort of stoppage that occurs when the President and Congress can't agree on a budget.

That's a woeful analogy. A budget impasse is a temporary problem that is resolved. If every administration refused to defend any law that it disagreed with passed under a previous administration, then every law would be subject to repeal with every new administration. That's nuts.

The need for Congress to approve the President's appointments a further restraint on the sort of chaotic power you envision.

That makes absolutely no sense. The President is still the final say-so in any administration. Congress is left with no recourse other than to create its own version of the Justice Dept.

Conservative christians are becoming the KKK with respects to gay rights, not a great place to go down in history.

Such penetrating insight. I'd probably remain anonymous, too, if this was the best argument I could come up with.

Anonymous said...

I still don't understand the equal protection argument against DOMA. Gays have the exact same right to marry persons of the oppsite sex that straights have. If anything, it seems more a "freedom of association" violation. But then, no one is denying gays the freedom to associate -they can go around holding hands and living together or whatever. DOMA only prevents them from forcing everyone to recognize their relationships as on par with marriage.

Anonymous said...

"A budget impasse is a temporary problem that is resolved."

That is no more true than the claim that Obama and Holder's type of action will only occur in rare and limited instances.

"That makes absolutely no sense." But I got it from the Federalist Papers. The AG is free to make his own decisions; if the President is upset and wishes to replace him, the Senate will be able to vet his nominee.

Mary De Voe said...

Gay "marriage" violates the will of God, the Father, dishonors the parents of it practioners and demeans our country.

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