Defense of Marriage Act

[IBCoupe]

There's a case working through the Court system, challenging the constitutionality of DoMA.

The Obama Administration stated today that DoMA is unconstitutional, and it has directed the Justice Department not to defend the law.

Your thoughts?

[heliochrome85]

imma go redecorate my apartment in celebration.



actually though, this is a major development as its rare for an administration to stop defending federal law without first offering up the changes they want to see.

im telling you. obama is a two term president. im going to do everything I can to help make this happen.

[IBCoupe]

Typically, the DoJ has a requirement to defend any law, unless it's blatantly unconstitutional. I think the Obama Administration is pretty safe in saying that this is blatantly unconstitutional (Go find me an enumerated power, Conservatives...), but it's still pretty ballsy.

And my money's on Thomas or Scalia writing the unanimous opinion striking down the law if it actually gets to the Supreme Court (I'm not sure where it is now... I'll look into it).

[audtatious]

We just need to wipe out Gov marriage all together. Let the religious do their ceremonies and everyone else do what they want with each other.

[heliochrome85]

We just need to wipe out Gov marriage all together. Let the religious do their ceremonies and everyone else do what they want with each other.

QFT

[IBCoupe]

Hard to find a federal justification for even a law like that. You could try to do something like that on the State level, but it's going to be messy to get a national theme like that.

With that said, were you to propose it in my State, I'd consider it, as long as I could be sure that other states would still be required to recognize marriages from outside their borders.

[audtatious]

If it turns into a state issue and the Fed drops out totally then it would be up to the states to determine whom they wish or don't wish to recognize.

[IBCoupe]

And, throughout American history, States have always recognized the marriages of other states. I don't think this would be the case with gay marriage, and so I'm not so keen on removing the title "Marriage" to make it easier for them to deny them.

If you got all fifty states together and got them to recognize State unions, then I'd be with ya.

[s0m3th1ngAZ]

Marriage has been around far longer than all the modern religions. I see no reason for them to hog the practice.

[audtatious]

Marriage has been around far longer than all the modern religions. I see no reason for them to hog the practice.

Then gay's can have their own little festivities if religious establishments won't do it for them. That's up to them. Of course, that assumes the "right to marry" is simply not a push for acceptance. If it is, they they will simply go after religion next as "marriage" itself means little to them.

[Cold_Zero]

Question,
What happenes when states turn around and sue the Federal government for not enforcing Federal Law? Kind of like AZ suing the Federal government for not enforcing Immigration and Border Laws. Or could that not happen in respects to DoMA?

[IBCoupe]

I don't think the Obama administration has proposed that they cease enforcement. I think they've stated that they will continue enforcement - they're simply going to make no attempt to defend the law from legal challenges.

That said, the way DoMA's structured, the only way the Federal Government could fail to enforce it is by recognizing a gay marriage. And in that case, I don't know who would actually have standing to sue.

Also: I remembered something important for the conversation between me and Aud. A reason why he might not need to go from State to State to get me on board for his "marriage" plan is the full faith and credit clause. It's never been tested in that fashion, but it might force a State to accept a marriage from another State. No precedent for it, but it has been ruled that the clause forces Oklahoma to accept a gay adoption from another State.

[Cold_Zero]

Thank you for the clarification.

Another question, why dont people who support civil unions or gay marriage use the Common Law status to justify their position? If a man and a woman are married in the eyes of the state by virtue of living together for a set amount of years, then why isnt a man and another man or a woman and another woman considered married?

bud

[audtatious]

Also: I remembered something important for the conversation between me and Aud. A reason why he might not need to go from State to State to get me on board for his "marriage" plan is the full faith and credit clause. It's never been tested in that fashion, but it might force a State to accept a marriage from another State. No precedent for it, but it has been ruled that the clause forces Oklahoma to accept a gay adoption from another State.

Which marriage plan am I trying to get you on board with?

[IBCoupe]

We just need to wipe out Gov marriage all together. Let the religious do their ceremonies and everyone else do what they want with each other.

With that said, were you to propose it in my State, I'd consider it, as long as I could be sure that other states would still be required to recognize marriages from outside their borders.

If it turns into a state issue and the Fed drops out totally then it would be up to the states to determine whom they wish or don't wish to recognize.

If you got all fifty states together and got them to recognize State unions, then I'd be with ya.

[AZhitman]

its rare for an administration to stop defending federal law without first offering up the changes they want to see.

Not really. We saw it with immigration. Recently.

Whether I support or oppose DOMA is irrelevant. It's not up to the Administration to decide which Federal laws to enforce. Last I checked, BHO isn't a Supreme Court Justice.

So, call it "ballsy" if you want, but remember that when they do something illegal that you DON'T support. Can't have it both ways.

[AZhitman]

Thank you for the clarification.

Another question, why dont people who support civil unions or gay marriage use the Common Law status to justify their position? If a man and a woman are married in the eyes of the state by virtue of living together for a set amount of years, then why isnt a man and another man or a woman and another woman considered married?

bud

Because it doesn't exist consistently in all states.

Plus, you'd have "involuntary CL marriages" happening - I'm not interested in being legally bound to my college roommate (or an adult offspring residing at home).

[IBCoupe]

Whether I support or oppose DOMA is irrelevant. It's not up to the Administration to decide which Federal laws to enforce. Last I checked, BHO isn't a Supreme Court Justice.

So, call it "ballsy" if you want, but remember that when they do something illegal that you DON'T support. Can't have it both ways.

Greg, they're not failing to enforce DoMA. There's a slew of FOXNews users (they only started posting after Juan Williams) over at NPR's website using the same uninformed rhetoric. There's nothing illegal about this; let me help you:

To fail to enforce DoMA, they'd have to actually go out and take action. To enforce DoMA, they have to continue to not take action. What's more: Holder explicitly stated that the Executive will continue to enforce DoMA, they will simply not defend it in Court. President Obama fulfilled his Constitutional duties by directing Holder to write that letter to Congress explaining (1) that the Department of Justice will no longer defend the law from court challenges and (2) why they will no longer do so.

There are a number of court challenges to DoMA working their way to the Supreme Court, and Congress has full authority to go ahead and appoint a special prosecutor to defend the law. The text of the Constitution makes it clear that the Executive branch has a duty to enforce all laws of Congress, and has been interpreted to mean that the Executive must defend the laws of Congress, except in two circumstances:

1. Where the law of Congress conflicts with Executive power, the Department of Justice can choose to defend the Executive power, instead of the law.
2. Where the law of Congress is clearly unconstitutional, the Department of Justice can tell Congress to fist itself.

We don't see much of #1, but #2 has happened thirteen times prior to this, since 2004. So, to sum up: President Obama has not decided not to enforce a law, and the Constitution does not order him to continue defending the law from Court challenges. Nothing illegal about it.

[AZhitman]

...and that's why you get to wear the tie.

Nice work, I stand erecte... corrected.

(...is it bad of me that I'd really like to see someone from the DOJ to tell Congress, in its entirety, to collectively fist themselves?)

[IBCoupe]

No problem. I spent all day trying to educate people on the comments section of NPR articles. Which was stupid, because I was copying and pasting from the NPR articles being commented on. Over 1,200 comments across two articles, NPR makes a new article illustrating exactly the mixed message caused by refusal to defend + insistence to enforce, and there's still people not getting it.

The internet needs a licensing procedure.

And, regarding your parenthetical: I'm in the process of having jackets made for the club; welcome to it. Currently having trouble coming up with a catchy abbreviation.

[stebo0728]

No problem. I spent all day trying to educate people on the comments section of NPR articles.

Does your boss know about that little bit?

[IBCoupe]

Quite probably. Still got everything done that I needed to, and got a short nap in. I'm a model of efficiency.

Came to realize how overqualified I was for this job the first week I got there. Then the recession happened and I resigned myself to the misery until after law school.

[AZhitman]

And, regarding your parenthetical: I'm in the process of having jackets made for the club; welcome to it. Currently having trouble coming up with a catchy abbreviation.

I was thinking t-shirts that say...

Hungry?
Eat a Congressman.

[IBCoupe]

win.

[audtatious]

I was thinking t-shirts that say...

Hungry?
Eat a Congressman.

I will leave that to you and IB. Make mine say "Congresswoman"