Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Jay Carney announced today that the administration will no longer defend D.O.M.A. having concluded the law is unconstitutional.
From Politico:
"The administration will not defend the Defense of Marriage Act in the Second Circuit," he states. "Furthermore, the president directed the attorney general not to defend, because of the decision that it is not constitutional, defend the Defense of Marriage Act in any other circuit in any other case."
Carney adds that on gay marriage, Obama is "grappling with the issue." (12:56 p.m.)
After two and a half years of defending it as constitutional, I wonder if the Plaintiffs will seek costs and counsel fees. I bet they will be happy enough with the victory.
I'm not looking to slog it out again over gay marriage since we just did that last week here.
But the reversal by the President and the ramification it has on federalism and his view of it might make for some tasty gravy.
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Sep '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Eric Holder stated this:
"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," he said. "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination."
Full text of letter from DOJ to Congress here
I'm interested in seeing what Messrs Yoo and Epstein have to say about the decision.
Edited on February 23, 2011 at 7:27pmDec '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
You know that Obama is in dire straits over the political disaffection of his base when he has to pull this arrow out of his quiver this far before the election.
By the way, how is this not an arrogation of the powers of the Judiciary branch to the Executive branch? The Constitution doesn't give the President the power to determine what laws are Constitutional.
Edited on February 23, 2011 at 7:23pmRe: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Funny that the Obama Administration will not defend DOMA, having decided without adjudication that the statute is unconstitutional, while continuing to implement ObamaCare in defiance of a valid federal court order finding that law unconstitutional.
Dec '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Well, you know, George, that was just that Court's opinion of ObamaCare. And it's not like the President asked the judge for his opinion.
Oct '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Welcome to the rule of men, not law.
Jan '11
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Rush has just nailed the reason for this move on his show.
Obama realizes that it is time to rouse another flush portion of the Democrat coalition just in case the unions can no longer contribute their share to Democrat campaigns.
Hypocritical Democrats have no trouble raising divisive "wedge issues" when it serves their purposes.
Learn your lesson, Governor Daniels. Just because you want to avoid messy social questions doesn't mean that your political oponents will.
They'll bring them up whenever it suits them.
Jan '11
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Nor does the Constitution prevent him. The idea that the Supreme Court is the final arbiter doesn't come from the Constitution. It's really from Marbury v. Madison. So, who says that the Supreme Court is the final arbiter? The Supreme Court says so. A little self-serving there, but there it is.
One theory holds that the Founders always meant for the judiciary to be the final arbiter. Another is that it was a convenient solution that we all just got used to.
In other forms of government, judiciaries aren't the final say. In a constitutional monarchy, for example, the monarch has the final say. In any case, there's nothing inherent about judiciaries that gives them the right to strike down laws passed by a legislature or monarch. Andrew Jackson leaps to mind.
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Taking the super-charged issue of gay marriage/equality/rights etc. out of it, did anyone else wonder if DOMA violated the full faith and credit clause of the Constitution?
I thought that to be a hurdle DOMA would fail to jump.
Oct '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
The valid federal court order finding the law unconstitutional was, uh, a mere accident! Happens all the time!
Dec '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Tommy De Seno: Taking the super-charged issue of gay marriage/equality/rights etc. out of it, did anyone else wonder if DOMA violated the full faith and credit clause of the Constitution?
I thought that to be a hurdle DOMA would fail to jump. · Feb 23 at 12:04pm
I think you are correct.
Jun '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Tommy De Seno: Taking the super-charged issue of gay marriage/equality/rights etc. out of it, did anyone else wonder if DOMA violated the full faith and credit clause of the Constitution?
I thought that to be a hurdle DOMA would fail to jump. · Feb 23 at 12:04pm
Perhaps, but that argument isn't even mentioned in the letter. Holder's claim is based solely on "heightened scrutiny" and the "documented history of discrimination... based on sexual orientation." He sees it as an Equal Protection issue, not a Full Faith and Credit issue.
Dec '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
So Obama is vetoing the bill after the fact?
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Joseph Stanko
Tommy De Seno: Taking the super-charged issue of gay marriage/equality/rights etc. out of it, did anyone else wonder if DOMA violated the full faith and credit clause of the Constitution?
I thought that to be a hurdle DOMA would fail to jump. · Feb 23 at 12:04pm
Perhaps, but that argument isn't even mentioned in the letter. Holder's claim is based solely on "heightened scrutiny" and the "documented history of discrimination... based on sexual orientation." He sees it as an Equal Protection issue, not a Full Faith and Credit issue. · Feb 23 at 12:27pm
Yes. I remember when Holder first filed briefs stating the Court should apply the rational relation test, the lowest standard available. That meant Obama's position was that gay marriage is not a fundamental right.
I was shocked that there was no outrage by gay activists. I shouldn't have been, but I was. It's the ultimate substantive issue in the matter.
I've always maintained that on the gay rights side, the entire movement is overrun with Democrat Party shills who don't actually care about the issue. So I shouldn't have been shocked.
Jul '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Tommy De Seno: Taking the super-charged issue of gay marriage/equality/rights etc. out of it, did anyone else wonder if DOMA violated the full faith and credit clause of the Constitution?
I thought that to be a hurdle DOMA would fail to jump. · Feb 23 at 12:04pm
Did you ever hear of the Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A)? The Violence Against Women Act (Pub. L. No. 103-322 [codified in scattered sections of 8 U.S.C.A., 18 U.S.C.A., 42 U.S.C.A.])?
Exactly. People prefer the Constitution to hold their preferred policy decisions within them when in fact, the Constitution is quite silent.
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
Richard Epstein has just posted here on Ricochet on this issue. Dumb on DOMA. Since he's a constitutional scholar, I'm betting we will all benefit from reading his thoughts.
Let's end this thread and head over to Richard's posts.
Oct '10
Re: Breaking News: Obama Administration Concludes D.O.M.A. is Unconstitutional
In true community organizer fashion, Obama is intentionally creating constitutional chaos here, hoping that when the dust settles, the radicals have become further entrenched in power.