The New Obama Policy On Constitutionality Of DOMA & Boies/Olson Reaction

Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, the Attorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains what this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due. This is an area where I have expressed extreme disagreement with Mr. Obama and his policy, and he has met exactly the issues that were faulty, and in a strong way.

Another thing should be noted here. From what I know of the 2nd Circuit, and what others very knowledgable about it confirm, the 2nd is going to find this music to their ears. They may not be the equivalent of the 9th Circuit on everything, but their disposition was going to be to knock down DOMA to start with. With this extra ammunition provided today, expect them to write VERY strong opinions knocking back DOMA and finding clear cut Constitutional protection for sexual identity equality. Couple that with the clear position evinced by the 9th Circuit, and the tide is turning. Fast and hard.

I simply do not see how Anthony Kennedy, based both on what I know of him and his clear opinion in Lawrence v. Texas, will not find for sexual identity equality if and when these cases reach the Supreme Court. This is why I have always maintained that Boies and Olson should stipulate to standing in Perry and get the case to the Supremes.

The above linked documents speak for themselves in most regards, but I would like to point out a couple of things. First, the Administration is not just going to cease defending DOMA, they are doing so on the express ground that it “violates the equal protection component of the Fifth Amendment”. That is huge. Not just that it is wrong, but that it flat out violates the most fundamental protections within the United States Constitution. Secondly, and to a legal eye every bit as important, if not more so, they have concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Again, huge. They lay out a detailed analysis under Bowen v. Gilliard why this is so, discuss Lawrence v. Texas, Romer v. Evans, Fontiero v. Richardson and conclude:

Each of these factors counsels in favor of being suspicious of classifications based on sexualorientation.


In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent o f the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.


And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mind was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

Moreover, events of this morning demonstrate that proponents likely cannot prevail even if this lengthy procedural detour were resolved in their favor. In a letter to Congress, the Attorney General of the United States announced the view of the United States that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitutional.”” Letter from the Attorney General to Congress on Litigation Involving the De- fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments——this Court’’s certification order, the California Supreme Court’’s response to it, and the Attorney General’’s announcement that the gov- ernment will no longer defend DOMA——are materially changed circumstances that warrant vacatur of this Court’’s decision to grant a stay pending appeal. See SEACC v. U.S. Army Corps of Eng’’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

The long and short of this is that Boies and Olson argue that between today’s announcement of the quantum shift in policy by President Obama and Attorney General Holder and the direction the California supreme Court is heading creates a situation is which there is simply no resolution of the appeal that favors the challengers – the h8ters – actually winning on the merits. There are several ways the case could go down, as pondered through by Boies and Olson, but none of them favor the bigoted proponents of Proposition 8.

Boies and Olson have a pretty compelling point if you total up the legal considerations extant at this point. The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got. The Administration should be commended for this as well, when they finally decided to ante in on the right side of the Constitutionality argument, they went all in. Bravo!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

  1. WilliamOckham says:

    The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

    What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got.

    Is it just me or does Holder’s letter sound a lot like the arguments that Boies and Olsen have been making?

  2. ondelette says:

    And the decision on the Rumsfeld defense. And, maybe coincidentally, I got an email response to my email to about their unemployment policy and why it wasn’t going to work today suddenly (they’ve never responded, even though I’ve clicked the box every time, before).

    Something has happened. They’ve held a summit in the Whitehouse about something or they’ve decided that appeasing Republicans doesn’t work or they moved somebody out of the way or something. Or he just got tired of the face he saw in the mirror in the morning.

    • emptywheel says:

      It could be that David Plouffe is just a whole lot better at his job than David Axelrod is.

      After all, SOMEONE managed to get Obama elected against all the odds.

      • Petrocelli says:

        Yeah, it was a mystery that Axelrod held his post ahead of Plouffe … perhaps Plouffe initially declined the job.

      • Phoenix Woman says:

        Yeah. In retrospect, things went to shit when Plouffe went away and Rahm/Axelrod came to the fore. (Then again, it could be said that things went to shit when Obama adopted Tom Daschle instead of Teddy Kennedy as his mentor who was going to take him to the next remaining level past Senator.)

    • bmaz says:

      There have been some changes just below Holder at DOJ and also, and I think this cannot be underestimated, Don Verrilli being tabbed to be Solicitor General. I think his hand is VERY much already in many of these things.

  3. bobschacht says:

    Well, if the Obama can do a 180 on this, and so decisively, what else may it be willing to do a 180 on?

    But of course, the difference between this case and, say, prosecution of torturers, is that the Obama administration has torturers among its employees, and accessories, too. A den of thieves may cooperate in the capture of another den of thieves, but that doesn’t mean they’ll turn on their own.

    Bob in AZ

  4. Teddy Partridge says:

    In your ultimate block quote, the runtogetherwords appear fixed, but you’ve got some wonky characters on my screen. Maybe they’ll show up in the cut-and-paste below?

    that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitutional.””

    • mzchief says:

      OT– It makes Bmaz appear as though he is a Dominoes player. Last time I played with a double-twelve set, my ace opponent blocked me in 3 moves, laid done 250 points and closed the game taking my whole hand of points as well. I hadn’t even had a chance to finish my espresso it was so fast. :-)

  5. scribe says:

    Well, either John Dunham gets his thumb out of his ass and starts prosecuting torturers – and the pending prosecution of John Edwards (someone who can rally the populist base to the Dems) gets publicly put to an end without any charges and the banksters who shoved this country into the crapper start getting sent to pound-your-ass-prisons – or I just mark all this sudden volte-face down to “shit! there’s an election coming, our base is seriously pissed off at us and the Rethugs will not hesitate to put us in jail if they win”.

    It’s all right and good and welcome, but …

    Any Democrat wih a set of balls would have done all of that and more within the first six months of inauguration. That it took these clowns 2 1/2 years to do it tells me it’s all election posturing.

    • PascoBill says:

      scribe, I’m afraid you beat me to it. It seems that his “evolving” personal view is designed to show the right-center that he still feels gay marriage is wrong, but his DOJ position shows that he has some recognition of an over-reaching, rights-squashing law like DOMA. Politics season, I’m certain. Most people, whatever their position, are less squishy on this issue than Obama.

      • scribe says:

        To be fair to him, he had to be vague, amorphous, malleable and evolving when he was still running to get to the White House. Too many obstacles to a black man (or anyone to the left of Deadeye Dick Cheney, for that matter) to getting there if you take a stand of any sorts. So, it’s a long-engrained habit of his.

        But, the problem is, when one becomes an executive – especially President – those habits of vagueness, squishiness, amorphousness and waffling which served so well before are now useless because the only way to lead – or to head a large organization – is to make sure everyone knows where you stand. To be sure, there are times when vagueness is necessary. But vagueness and back-and-forth as a primary response is not the way to go. It’s the way to lose your base (independent of screwing over your base time and again).

        Remember the Afghanistan strategy sessions which lasted literally months on end? The US’ WWII campaign in North Africa – the entire campaign from TORCH through Kasserine Pass through capturing the Afrika Corps – took about 6 months. He spent almost that long on deciding which way to go in fucking Afghanistan. He can’t make up his fucking mind. And that’s the result of having no principles.

        Ok, no principles other than the primary one – get (re)elected. He has devoted instant attention – and almost-as-instant decision-making to those issues which bear directly on getting more campaign money and love from the people who put him there: Wall Street. And he’s moved even faster to quash any attempts to go after those criminals.

        So, it’s purely election posturing. He knows by now that he’s in serious trouble with his base and he has to throw them bones to get them to get off their couches.

        Me? I don’t give a fuck. He hasn’t done shit for me, and he has gone the wrong way on every issue just about every time, and dithered in getting there. In my “real” life, I’m a legend for some of my fuckups, but I could do a better job than he has. I wouldn’t have stocked my Administration with war criminals, for starters.

        • Stephen says:

          You stated, “I wouldn’t have stocked my Administration with war criminals, for starters.” I believe you could include numerous Wall St. subversives as well.

    • MarkH says:

      Any Democrat wih a set of balls would have done all of that and more within the first six months of inauguration. That it took these clowns 2 1/2 years to do it tells me it’s all election posturing.

      In those 2 years (not 2.5) the economy was saved, health care reform passed, higher ed. loan reform passed, 2 wars being fought with one winding down, Republicans saying “No” to everything … yeah, nothing special.

      Now the economy is recovering and we can begin to see the end of the Afghan involvement, so moving on to other things Dems want makes a lot of sense. Posturing? Not really. Political interests being tended to? Somewhat yeah.

      btw, you misspelled “with”.

      Do ya think Dubya would have treated the Wisconsin protesters with aplomb or a bomb? Thank your lucky stars Obama is prez at this time. Think Dubya would have handled the Cairo rebellion (and the others) as well as Obama? Thank goodness we’re on a better path.

      Great article ew.

      • PJEvans says:


        The economy hasn’t been saved, health care coverage hasn’t been improved, and student loan reform made things worse for students.
        Also what end to the war in Afghanistan?

      • Mauimom says:

        Mark Halperin, is that you?

        Someone has been spending all his time, and doing all his “research,” at the DNC & OFA.

  6. Teddy Partridge says:

    Statement from HRC:

    WASHINGTON – The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender civil rights organization, today praised the Obama Administration’s decision not to continue its defense of the so-called “Defense of Marriage Act” (DOMA) in court. DOMA denies federal recognition and benefits to legally married same-sex couples and purports to allow states to deny recognition to those couples as well.

    “This is a monumental decision for the thousands of same-sex couples and their families who want nothing more than the same rights and dignity afforded to other married couples,” said HRC President Joe Solmonese. “As the President has stated previously, DOMA unfairly discriminates against Americans and we applaud him for fulfilling his oath to defend critical constitutional principles.”

    HRC has engaged in an effort to encourage the administration to abandon its defense of the statute for years, including writing to the President directly and encouraging our members and supporters to contact the administration as well.

    Under federal law, the Department of Justice must report to Congress its intent not to defend the statute and it is likely that anti-LGBT leaders in Congress will take up its defense.

    “Congressional leaders must not waste another taxpayer dollar defending this patently unconstitutional law,” said Solmonese. “The federal government has no business picking and choosing which legal marriages they want to recognize. Instead Congress should take this opportunity to wipe the stain of marriage discrimination from our laws.”

    DOMA, passed in 1996, denies married same-sex couples over 1,000 rights, benefits and responsibilities tied to marriage under federal law. These include Social Security survivors’ benefits, family and medical leave, equal compensation as federal employees, and immigration rights, among many others.

    As with Freedom to Marry, have these advocates over-optimistically characterized today’s news, bmaz?

    • Kelly Canfield says:

      Call me a wet blanket, but this announcement doesn’t change one thing one bit.

      DOMA is still the law. Unless and until Perry becomes affirmed by SCOTUS it’s status quo.

        • bmaz says:

          Section 3 is the core of it and concurrently guts section 2. The constitutionality argument is everything. And, as always, the idea is to get it to the Supreme Court. Cannot emphasize that enough. That is what this is all about, and what is so frustrating about people who want to just take some pissant little victory somewhere isolated and be happy with it. The key is to get the underlying rights recognized as being constitutionally protected. Which is what they should be.

  7. Teddy Partridge says:

    And lest anyone worry that the President now favors marriage equality, new SpoxBot Jay Carney laid those worries to rest quite promptly:

    Does this mean the president now favors gay marriage? At today’s press availiability, White House press secretary Jay Carney said he doesn’t:

    “I would refer you to just to his fairly recent statements on that. He is grappling with the issue. But he — again, I want to make the distinction between his personal views, which he has discussed, and the legal decision that was made today.”

    Obama recently said his position on the issue is “evolving,” so Carney’s quote appears to mean that it still is in that mode.

    So Obama’s views continue to evolve, although we can’t really know in what direction exactly, since he explicitly favored marriage equality in 1996.

    • BoxTurtle says:

      Obama is just trying to have it both ways, like always.

      The cynic in me notes that Obama defended it until just after the elections.

      The pessimist in me notes that Obama is not the last word, there are 4 solid votes against equal rights for gays on the supremes, and that the Dems are spineless enough that a Tea party backed constitutional change could get out of Washington.

      The realist in me notes that Obama is PROBABLY a good enough lawyer to know he was going to lose. Yes, yes I know, assumes material not in evidence…

      The optimist in me notes that Obama has been working behind the scenes, and for once on the right side!

      And the rightous jerk in me says: Hey h8rs! Put that in your pipe and smoke it!

      Boxturtle (I raise a single malt toast to the warriors who made this happen)

  8. cregan says:

    Bmaz, while I agree with the general thrust of your position, I think this way of doing it presents a real problem for the future.

    for some, the future very well might be a GOP administration refusing to defend health care reform, or any other law duly passed (maybe financial reform), but with which they disagree. Thereby, making those acts null and void.

    It is all fine and dandy when the “not defending” is done in regard to an issue you support, but what about when it isn’t?

    As we all know, a logical argument can be made in support of not defending any issue. That is what lawyers are hired for.

    Are we now going to change the oath of office to “I will defend those laws I agree with and like.”

    Maybe nice in this case, but don’t cry when the same tactic is used on something you don’t like.

    • bmaz says:

      If the sorry sacks of pitiful shit in the TeaPartyGOP want to pull some stunted crap, then they are going to do it. It was the right and Constitutional thing to do here, but you can bet your family farm that it will be some petty, dogmatic, bigoted horseshit when the TeaPartyGOP does it. And I will call them on it as just that; in the random chance what they do is actually proper, I will say so.

      • eCAHNomics says:

        troll alert

        Is there any chance the ‘interveners’ can come in for one last chance to make utter fools of themselves?

        As painful as it was (I was online for over half the Prop H8 trial liveblog), in retrospect, it made a real mockery of the interveners. I’d like to see them with vomit, poo, & pee on their faces just one more time.

  9. KrisAinCA says:

    So to bmaz and the other fabulous legal minds at Marcy’s joint, what effects, if any, will this have on Proposition 8 proceedings? If Federal courts find the restriction of marriage illegal, but states are allowed to define marriage for themselves, does this allow Perry v Governator to continue in its appelate process? Or does the CA circuit court cite this as grounds to strike down the appeal in November/December?

    However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due.

    I agree. I believe this is the most decisive action we’ve seen from this administration, or Holder for that matter. It’s nice to see Obama be forceful about something instead of flip-flopping all over the place with soft language and apologetic nonsense.

    • bmaz says:

      As I said to Teddy @23, Section 3 basically is the ballgame and obviates the weight of Section 2. I think Obama is coyly leaving himself some wiggle room for campaigning, but the fact of the matter is the two cases at issue in the 2nd Circuit Gill and Peterson/Windsor both only involve Section 3, not Section 2 which applies to states, and there is therefore no reason that should necessarily be part of the position the Administration took today.

      • KrisAinCA says:

        So section two of DOMA is what allows for states to define marriage for themselves, then. Which still stands.

        Crap, I was hoping for an inadvertant crippling of the Perry v Ahnold appeals.

        • BoxTurtle says:

          Oh, they’re crippled alright. The 9th is ready to rule IMO, they just need the Ca Supremes to grant standing. Once that happens, I expect the 9th to uphold Walkers ruling, actually reinforce it, and send it to the Supremes.

          On the supremes, we can already be pretty sure of 8 votes. It all depends on Kennedy and ObamaLLP’s announcement reads almost like a letter to Kennedy. Some folks think the Roberts vote may be in play as well.

          If I’m a h8er, I’m trying to figure out how to keep this from the Supremes until I can get one more friendly vote.

          Boxturtle (Did anybody check to see if Rush’s head exploded?)

            • Kelly Canfield says:

              bmaz – as to timing you already opined that Perry gets a CA Supremes decision somewhere end of November/December, something like that.

              What sort of time frame to get from there to SCOTUS?

              • Teddy Partridge says:

                Boies and Olson have also asked the Appeals Court to lift its stay, citing the lengthy delay now that the CA Supremes’ year-long effort will entail, which was not anticipated when the stay of Walker’s ruling was issued.

              • bmaz says:

                I think the 9th will make quick work of it upon return from Calif Supreme Court, which means it could be headed to SCOTUS by spring or early summer if……..there is not an en banc rehearing in the 9th, which could consume between an extra 6-12 months.

                • Margaret says:

                  I don’t pretend to understand nuance of legalities and so forth but isn’t it a given that people like NOM will attempt to slow down anything that might overturn Proposition 8? Isn’t it true that the longer the law remains in effect, the more it becomes defacto policy?

        • bmaz says:

          Why on earth would you want the Perry appeal crippled??? That is the best vehicle for taking this issue to the Supreme Court that you could hope to have in ten lifetimes.

          • KrisAinCA says:

            Okay. I see the logic there. Hadn’t thought about that. I was just seeing Perry as the be all end all for gay marriage in CA. If the courts find no standing for appeal, problem solved for CA.

            As you point out, perfect for Supremes. Although it’ll probably take another 2-3 years. Ugh.

              • NorskeFlamethrower says:

                Citizen Teddy Partridge:

                Ah yes Citizen Teddy, the work, sweat and sometimes blood expended and spilled on this as well as the entire spectrum of progressive issues seem to be ripening for 2012. The coalition that germinated in Massachsetts and flowered in California will ripen in 2012 as part of a much larger progressive, gay rights, immigrant rights, anti-war, anti-corporate and new democracy movement. Things are moving so rapidly that the CIA and the political opportunists in the White House can’t even get a radar fix on from where the next attack will come. Like the period from 1963-1975, no one in this country will escape the effects of the forces of history that are grinding up the old 20th century empires and not unlike the period from 1932-1945 the larger political coalition and the structure of its excercise will be different than anything we have seen before and will extend beyond the boundaries of the country.

                We live in interesting times, Brother Partridge, and there is much more pain and suffering coming down from our once and future history but we will all be together to suffer it and give it to the children as the future.

    • BoxTurtle says:

      1) I think it’ll get the Calif injunction lifted, possibly soon. The court doesn’t HAVE to give the h8ers a chance to respond, it’s the courts order.

      2) It’ll speed other cases along dramatically. With the DoJ running interference, they could slow things to a crawl.

      The question is still going to the supremes, it’ll just get there sooner and with a harder edge.

      Boxturtle (If you’re in a Red State, that *POP* you heard is a paradigm shifting without a clutch)

      • jedimsnbcko19 says:

        you don’t know OBAMA like we do.

        Obama will do anything to win the WH in 2012.

        talk is he may hug Jane Hamsher

        Obama threw his Catfood commission under the bus

        Obama is not stupid, he knows election season is coming, so it is time to ACT like a progressive again.

        Donald Trump is causing OBAMA problems, Donald is seeking and taking Sane GOP voters from OBAMA, Donald is going to give the INSANE GOP voters to Sarah Palin.

        Politics is all about the Mythical Middle to Con Artist like OBAMA

        • bmaz says:

          Well, I don’t know who “we” are, but I have a pretty good bead on Obama and I am hard pressed to believe you have any more of a jaded opinion than I do. But saying this has something to do with Trump is nuts. This is something that has been being put together for at least a month or two by the nature of their policy statement in the Boehner letter; they did not just gin this up last week when Trump started making his pathetic noises. No one in the political community I have heard thinks Trump is anything but a fucking joke, including the White House. There is a good reason for that; he is a joke. Trump could not stand up to the rigors of a national campaign, nor does he want to. He is always the publicity hound self promoter though.

          • jedimsnbcko19 says:

            Obama is the one tied with Mythical Republicans

            1. Gas heading toward $5.00 a gallon
            2. Un-employment in 2012 9% or higher

            your quote
            “No one in the political community I have heard thinks Trump is anything but a fucking joke, including the White House.”

            we think the WH is a JOKE!

            one thing about this WH, they love talking to jokes, remember this is the WH that reaches out to people like Gov. Walker :)

            remember how the WH reached out to the Orange Man and McConnell over the OBAMA/Bush tax cuts, so the WH should not call anyone NUTS

        • PJEvans says:

          Yeah, but the people whose votes he wants are the same ones who want to primary him on the basis of his sorry record. He can’t undo his record, and he doesn’t have enough time, or, at this point (thanks to his crappy work) the votes, to do all the stuff he promised to do in 2008 in order to get those votes the first time around.

  10. Margaret says:

    Credit where it’s due indeed, though I have to wonder just what took so long. Still, I’m not going to ruin the announcement be ascribing some ulterior motive to it. Not yet anyway. Well done Obama.

  11. tellmewhy says:

    Can a just law be morally wrong? No. . .

    So how can the President say this is the correct legal position, yet personally he believes it’s wrong?

    Remind me again how many angels can dance on the head of a needle?

  12. Teddy Partridge says:

    I have yet to see explained WHAT CHANGED.

    What has happened to merit this decision, and to set aside all those arguments about how the executive branch is legally bound to defend all laws?

    • Margaret says:

      Sorta blows those arguments out of water in the future though, does it not? How can this administration ever again claim to oppose a law but then go on to say that they are bound to defend it?
      Yeah, I’d like to know what’s changed too.

    • spanishinquisition says:

      The Obama administration is claiming that nothing has changed, just this is a different venue. They’re saying it is reasonable to defend DOMA where “rational basis” applies, but they’re saying they’d be in a court where rational basis doesn’t apply, so for those jurisidictions they’re saying it’s unconstitutional – they want it both ways by simultaneously claiming it is constitutional and unconstitutional at the same time.

      • bmaz says:

        What do you mean with the “court where rational basis doesn’t apply” or “where rational basis applies”??

        Rational basis is a level of scrutiny, one of three levels of scrutiny that apply in any court where a law or action is being tested under the equal protection clause of the 14th Amendment. The three levels of scrutiny, from lowest to highest, are: rational basis, intermediate scrutiny and strict scrutiny. These tests are used in any court undertaking such an analysis.

        • spanishinquisition says:

          As Adam Bonin lays it out here, bumping up the standard of review isn’t mere legal semantics. In his letter, Holder explains that the administration “has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.” “Rational basis review” means that courts will uphold the law so long as it is rationally related to a legitimate government interest. It’s the most deferential standard of review, and, Holder suggests, the administration could muster the arguments to defend it in the jurisdictions that applied that test. (Although Holder then goes on in his letter to pillory even the “rational” reasons often advanced to discriminate against gay marriage, including arguments about ” ‘procreational responsibility’ that the department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings.”)

          • bmaz says:

            Yes, that is exactly what I am saying. It is a test applied in a particular case, or on a particular issue, not a function of the what court it is in. It is what is applied, not where it is applied. This is not necessarily easy stuff after a while, even most attorneys do not know much more than different levels may apply to something. That is one reason I do not delve into the details of equal protection analysis; it just gets very weedy and few really can traverse it easily.

          • bobschacht says:

            We are now officially above my pay-grade.

            I am beginning to bristle at this expression, even though I’ve used it myself. I think our founding fathers would have bristled at it, too. It is the kind of thinking that promotes the English class system and destroys Democracy. Dammit, if I run up against something like that, I want it explained to me in terms that I can understand, and if the speaker can’t do that, then it is HIS or HER fault, not mine.

            Remember that old mantra from the ’60s? Question Authority! I need to get one of those bumper stickers. Ain’t no question above my pay grade!
            (Of course, I reserve the right to “pass” if questioned about it, myself!)


            Bob in AZ

  13. Petrocelli says:

    Bmaz, I think it would be a good idea for you to add links to your previous posts on this matter and why it is critical to get this before the SCOTUS.

    There are many on the Left who simply do not understand this and your insights would go a far way towards uniting us and pushing this to SCOTUS.

    O/T … Isn’t Bollywood enough of a Circus ? – Sarah Palin to visit India in March – via HuffPo

  14. sonofloud says:

    Don’t need any Johnny-come-latelys thank you.
    As with DADT it is going to take another federal judge ruling (thank you Judge Phillips) before we see any action on Feinstein’s bill.
    As for credit, I’ll stick with people who supported us those two years Obama defended all of DOMA and DADT.

    PS Deciding not to defend PART of DOMA after defending ALL of DOMA for the last two years hardly turns into a hero, it more accurately shows his political opportunism and disregard for those of us that are still second class citizens in hundreds of ways.

    • bmaz says:

      As I explained above this “only did part of DOMA” is just wrong. He has substantively now reversed position, and taken the entirely proper position, on the only parts actively pled in the cases at issue. That is all he could do on those. You do not have to like Obama, you can say he took too long to get here, but this is one hell of a huge step, don’t wrongfully trivialize it.

  15. arcadesproject says:

    recently militantly bigoted republicans, of the tea party persuasion, let gay republicans know that they are not welcome in their organizations and councils. so i wonder whether O wants republican gay folks to consider him in 2012. They could do a lot worse, particularly in view of the fact that O is a republican.

  16. reglawyer says:

    If I may provide some clarity, I think the administration understands that there’s no reason to set future precedents blindly, and that the people are empowered enough to demand some balance and nuance from the President.

    This is a good decision. We can quibble over the next decision to enforce or unenforce as it comes up.

  17. Petrocelli says:

    I think we can all agree that this was a long time coming, but now that it’s here, let’s keep moving this in the right direction until our LGBTQ Brothers & Sisters have their equal rights firmly entrenched in Law.

    I for one will love the day when Roberts, Thomas et al have to agree that equal rights for all means just that !

    Anyone able to buy a drink for Messrs Boies & Olsen, please add a round for me.