# Federal Judge moves towards overturning DOMA **URL:** \ **Category:** Great Debates\ **Created:** [January 20, 2011, 4:20am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294 "2011-01-20T04:20:05Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [February 23, 2011, 11:36pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/41 "2011-02-23T23:36:40Z")
> [@The\_Tao\_s\_Revenge](#): > > Well I look at this way, either they’re unintentionally being jackasses, in which case there’s the hope of an epiphany where they realize “hey you know gay people are people too. I need to be a stop being a bigot. Also maybe Obama isn’t going force convert me to Islamic Socialism at the doctors office. You know maybe I misjudged that guy completely”. > > Sadly the other option, which you imply, is far, far more likely. They’re intentionally being jackasses. In which case logically they’ve earned whatever scorn they get for being repulsive shit birds with a repulsive shit bird law. I suspect that the real reason is that they are convinced that Jeezus hates gays, and that they should too. They are just a bit more cicumspect about it than other gay haters. Especially when they are humping their boy toys. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [February 24, 2011, 4:18am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/42 "2011-02-24T04:18:05Z")
> [@John\_Mace](#): > > OK. I can accept that. > > Now, addressing the issue that \*\*Oakminster \*\*raised about “not liking the idea of Congress possibly hiring its own lawyers to defend DOMA”, I don’t see why they shouldn’t. They passed the law, and if the administration won’t defend it in court, then it seems unreasonable to expect them to just sit pat and do nothing. I think the AG has a moral and ethical duty to honestly advise the President regarding constitutional issues arising under statutes being chalenged in Court. Also think the President, as head of the Executive Branch, has the authority to set policy for his subordinates, including the AG. Here, I think Obama has listened to the advice of his AG, perhaps applied his own legal philosophy (remember, Obama taught Constitutional Law, so he speaks the same language), and reached a reasonable conclusion regarding constitutional problems with DOMA. I have a real problem with taxpayer dollars funding both sides of a lawsuit. Suppose the new congress, in its infinite wisdom, passed a law re-instituting slavery. Assume they overrode Obama’s veto. Pretty much everybody that’s ever studied at least as far as high school civics class knows that re-instituting slavery is blatantly unconstitutional. Obama tells the AG not to defend the new law from the inevitable challenge. You really want the taxpayers to pay for Congress to hire lawyers to defend the absurdity? “The People” have a remedy at the polls. If they’d prefer a POTUS that will instruct DOJ to defend DOMA, or re-instituting slavery, they can elect a new guy. Congress also has a remedy. They can impeach the POTUS for failure to faithfully enforce the laws as written if they so choose. Of course, they are also ultimately answerable to the people at the polls. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [February 24, 2011, 4:40am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/43 "2011-02-24T04:40:00Z")
> [@Oakminster](#): > > I have a real problem with taxpayer dollars funding both sides of a lawsuit. Suppose the new congress, in its infinite wisdom, passed a law re-instituting slavery. Assume they overrode Obama’s veto. Pretty much everybody that’s ever studied at least as far as high school civics class knows that re-instituting slavery is blatantly unconstitutional. Obama tells the AG not to defend the new law from the inevitable challenge. You really want the taxpayers to pay for Congress to hire lawyers to defend the absurdity? If Congress were to intervene, they’d be arguing one side, and someone else (GLAD, in _Pederson v OPM_, the case that prompted this) would be arguing the other side. Not that I think Congress should. ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [February 24, 2011, 4:42am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/44 "2011-02-24T04:42:03Z")
> [@Oakminster](#): > > Wondering what exactly is meant by “heightened scrutiny”? Is this the same as what I would call “strict scrutiny”, or is it some lesser standard? From a different article, bolding mine > [@](#): > > But Holder said Obama concluded the law fails to meet a rigorous standard under which courts view with suspicion any laws targeting minority groups, such as gays, who have suffered a history of discrimination —\*\* a stricter standard of scrutiny than the department has applied in the past.\*\*Looking back to Congress’ debate on the legislation, Holder said it was clear that there were **“numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships — precisely the kind of stereotype-based thinking and animus the (Constitution’s) Equal Protection Clause is designed to guard against.”** [http://news.yahoo.com/s/ap/20110224/ap\_on\_re\_us/us\_gay\_marriage;\_ylt=AhkTecaMIndGrYqJNrLUQ0Ws0NUE;\_ylu=X3oDMTNqdGx0N3N0BGFzc2V0A2FwLzIwMTEwMjI0L3VzX2dheV9tYXJyaWFnZQRjY29kZQNtb3N0cG9wdWxhcgRjcG9zAzUEcG9zAzIEcHQDaG9tZV9jb2tlBHNlYwN5bl9oZWFkbGluZV9saXN0BHNsawNnb3Zlcm5tZW50ZHI-](http://news.yahoo.com/s/ap/20110224/ap_on_re_us/us_gay_marriage;_ylt=AhkTecaMIndGrYqJNrLUQ0Ws0NUE;_ylu=X3oDMTNqdGx0N3N0BGFzc2V0A2FwLzIwMTEwMjI0L3VzX2dheV9tYXJyaWFnZQRjY29kZQNtb3N0cG9wdWxhcgRjcG9zAzUEcG9zAzIEcHQDaG9tZV9jb2tlBHNlYwN5bl9oZWFkbGluZV9saXN0BHNsawNnb3Zlcm5tZW50ZHI-) ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [February 24, 2011, 7:14am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/45 "2011-02-24T07:14:21Z")
> [@John\_Mace](#): > > OK. I can accept that. > > Now, addressing the issue that \*\*Oakminster \*\*raised about “not liking the idea of Congress possibly hiring its own lawyers to defend DOMA”, I don’t see why they shouldn’t. They passed the law, and if the administration won’t defend it in court, then it seems unreasonable to expect them to just sit pat and do nothing. The executive branch is obligated to defend any law for which it has a reasonable defense. Holder is basically saying that he doesn’t think there is an argument he can present to defend DOMA in court. Congress has the right to hire its own lawyers to do so. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 24, 2011, 7:37am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/46 "2011-02-24T07:37:16Z")
> [@Oakminster](#): > > I have a real problem with taxpayer dollars funding both sides of a lawsuit. Suppose the new congress, in its infinite wisdom, passed a law re-instituting slavery. Assume they overrode Obama’s veto. Pretty much everybody that’s ever studied at least as far as high school civics class knows that re-instituting slavery is blatantly unconstitutional. Obama tells the AG not to defend the new law from the inevitable challenge. You really want the taxpayers to pay for Congress to hire lawyers to defend the absurdity? I don’t understand your point on multiple grounds: 1. Tax payers are only funding one side of the lawsuit. The other side of the lawsuit is being paid for by five same-sex couples challenging the law. 2. There are already plenty of situations where taxpayers fund both sides of a lawsuit. An example would be in situations where one government agency sues another. Congress has also sued the President multiple times and vice versa. 3. The President and the DOJ shouldn’t be allowed to decide whether something is blatantly unconstitutional. I obviously agree with you with regards to slavery, but not every law is so clearly unconstitutional. Whoever has standing to defend the constitutionality of a law should be able to defend that law. P.S. Obama surprises me once again by doing something that I was hoping he would do when I voted for him. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 24, 2011, 7:45am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/47 "2011-02-24T07:45:37Z")
> [@Damuri\_Ajashi](#): > > The executive branch is obligated to defend any law for which it has a reasonable defense. Holder is basically saying that he doesn’t think there is an argument he can present to defend DOMA in court. > > Congress has the right to hire its own lawyers to do so. I have no idea on the law in this regard and who has a “right” to do whatever but I will say, as a matter of opinion, I think Congress should have the “right” to oppose the Executive in cases like this. Balance of powers and all that jazz. If the Exec could foil the legislature so simply that’d be messed up. I am on Obama’s side in this case but I know someday someone may be there that I do not like and would wish Congress could oppose their bullshit. I am comfortable that there is no rational reason a court can come up with to defend DOMA (yes, they may be irrational and political but that is politics…there is no rational reason…yeah I said it…NONE). ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [February 24, 2011, 2:22pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/48 "2011-02-24T14:22:18Z")
> [@John\_Mace](#): > > OK. I can accept that. You know, John, if you keep being all reasonable and responsive to facts, they’ll take away your G.O.P. membership card. 😉 But seriously, kudos to you (and Oakminster, if memory serves) for being part of the Reasonable Right. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 24, 2011, 2:26pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/49 "2011-02-24T14:26:54Z")
> [@Oakminster](#): > > I have a real problem with taxpayer dollars funding both sides of a lawsuit. Suppose the new congress, in its infinite wisdom, passed a law re-instituting slavery. Assume they overrode Obama’s veto. Pretty much everybody that’s ever studied at least as far as high school civics class knows that re-instituting slavery is blatantly unconstitutional. Obama tells the AG not to defend the new law from the inevitable challenge. You really want the taxpayers to pay for Congress to hire lawyers to defend the absurdity? If Obama tells the AG to _defend_ the new law, taxpayers are paying for Congress to hire lawyers anyway. In any event, as **Lakai** notes, taxpayers often foot the bill for both sides of a lawsuit. Happens every day in criminal courts, where the defendant is represented by a public defender (or runs out of money to pay his attorney midway through the trial, and is ruled indigent). > [@Lakai](#): > > 1. The President and the DOJ shouldn’t be allowed to decide whether something is blatantly unconstitutional. I obviously agree with you with regards to slavery, but not every law is so clearly unconstitutional. Whoever has standing to defend the constitutionality of a law should be able to defend that law. The President and DOJ _can’t_ decide whether something is blatantly unconstitutional, except to the extent that they can stop enforcing it. The DOJ’s job is to enforce the laws, not to argue for their constitutionality. There are lots of political action groups that can argue for their constitutionality, if they so choose. Focus on the Family got the law passed; let them pay to defend it. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [February 24, 2011, 6:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/50 "2011-02-24T18:35:07Z")
Don’t we believe in “equality and justice for all”. The 14th says we can not make laws that abridge the rights and privileges of any citizens of group of citizens. Especially when it guts the" equal protection of law". Singling out gays and lesbians for special laws is not a right of the states. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 24, 2011, 7:25pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/51 "2011-02-24T19:25:29Z")
> [@gonzomax](#): > > Don’t we believe in “equality and justice for all”. The 14th says we can not make laws that abridge the rights and privileges of any citizens of group of citizens. Especially when it guts the" equal protection of law". > Singling out gays and lesbians for special laws is not a right of the states. The 14th amendment doesn’t actually say “equality and justice for all.” It doesn’t protect all citizens equally. Certain classes of citizens get more equality than others. There is a big debate over whether gay people fall into the class of people that deserve more protection. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 24, 2011, 8:26pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/52 "2011-02-24T20:26:06Z")
> [@John\_Mace](#): > > OK. I can accept that. > > Now, addressing the issue that \*\*Oakminster \*\*raised about “not liking the idea of Congress possibly hiring its own lawyers to defend DOMA”, I don’t see why they shouldn’t. They passed the law, and if the administration won’t defend it in court, then it seems unreasonable to expect them to just sit pat and do nothing. The Legislative branch isn’t there for enforcing laws, that’s the Executive branch’s job, they are there for passing them. Just like if all 9 Supremes die or quit, Congress can’t just decide to take up the mantle itself and start trying cases If the Executive branch doesn’t enforce the laws, it doesn’t mean another branch gets its powers by default. There’s nothing Congress can, or should do about it. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 24, 2011, 8:38pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/53 "2011-02-24T20:38:49Z")
> [@YogSosoth](#): > > The Legislative branch isn’t there for enforcing laws, that’s the Executive branch’s job, they are there for passing them. Just like if all 9 Supremes die or quit, Congress can’t just decide to take up the mantle itself and start trying cases > > If the Executive branch doesn’t enforce the laws, it doesn’t mean another branch gets its powers by default. There’s nothing Congress can, or should do about it. Arguing for a law isn’t the same as enforcing it. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [February 24, 2011, 8:49pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/54 "2011-02-24T20:49:33Z")
I am someone who thinks that DOMA is legalized discrimination and will be glad when it goes away completely. However, as I was asked by someone else about this recently who had issues with the process here: How would I feel if the DOJ decided to not enforce a law that I did agree with? I have trouble answering this but I can imagine that I would be furious if it happened. My response to him was that the House can still hire lawyers to compel the DOJ to enforce the law, that it’s all a part of the checks and balances, but I felt dirty saying it because while true, it still would make me want the DOJ punished/removed from duty if all of that effort proved that he was merely being an activist instead of the head of law enforcement in this country. How do I reconcile my mixed feelings here without being a hypocrite? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [February 24, 2011, 8:54pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/55 "2011-02-24T20:54:37Z")
> [@John\_Stamos\_Left\_Ear](#): > > I am someone who thinks that DOMA is legalized discrimination and will be glad when it goes away completely. > > However, as I was asked by someone else about this recently who had issues with the process here: How would I feel if the DOJ decided to not enforce a law that I did agree with? > > I have trouble answering this but I can imagine that I would be furious if it happened. > > My response to him was that the House can still hire lawyers to compel the DOJ to enforce the law, that it’s all a part of the checks and balances, but I felt dirty saying it because while true, it still would make me want the DOJ punished/removed from duty if all of that effort proved that he was merely being an activist instead of the head of law enforcement in this country. > > How do I reconcile my mixed feelings here without being a hypocrite? That is not applicable in this case. The DoJ is still enforcing the law, and will do so until it gets overturned. What they are not doing is offering a defense of the law in court. Isn’t it better that Holder says this openly than if they send in a rookie who makes no real arguments? So, no conflict at all. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [February 24, 2011, 8:59pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/56 "2011-02-24T20:59:36Z")
> [@Lakai](#): > > 1. The President and the DOJ shouldn’t be allowed to decide whether something is blatantly unconstitutional. I obviously agree with you with regards to slavery, but not every law is so clearly unconstitutional. Whoever has standing to defend the constitutionality of a law should be able to defend that law. They aren’t. The court decides whether or not it is constitutional, and if it is a slam dunk can decide so without arguments from the government. What Holder is saying is that he cannot make a case that the law is constitutional. Clearly he thinks it isn’t, but he doesn’t make the decision. My question, still unanswered, was whether Congress had standing to defend the law, whether or not the AG chose to do so. ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [February 24, 2011, 9:32pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/57 "2011-02-24T21:32:31Z")
It’s going to be very interesting if a conservative president gets elected in 2012 and decides to drop all defense of suits against Obamacare (assuming the Supremes haven’t decided its constitutionality in the meantime). Even the uber-liberal [Washington Post](http://www.washingtonpost.com/wp-dyn/content/article/2011/02/23/AR2011022306101.html) today thinks that this is a very risky thing to do, to drop all defense of DOMA in courts. I wonder if any president has ever taken such an unusual step before, to unilaterally halt defense of a law duly passed by Congress (and signed by a President of the same party, no less). ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 24, 2011, 9:40pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/58 "2011-02-24T21:40:12Z")
> [@Voyager](#): > > They aren’t. The court decides whether or not it is constitutional, and if it is a slam dunk can decide so without arguments from the government. What Holder is saying is that he cannot make a case that the law is constitutional. Perhaps he should hire someone who can. > [@](#): > > My question, still unanswered, was whether Congress had standing to defend the law, whether or not the AG chose to do so. Why would they need standing to defend the law? The plaintiff(s) need standing, not the lawyers. And if I read the article in today’s Merc correctly, Holder sent the letter to Congress stating his intentions specifically to allow Congress to make other arrangements if they so decide. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 24, 2011, 9:42pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/59 "2011-02-24T21:42:42Z")
> [@John\_Mace](#): > > Perhaps he should hire someone who can. But there is no requirement to. It’s simply not the executive’s job to defend the constitutionality of every half brained scheme the legislature comes up with. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 24, 2011, 9:44pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/60 "2011-02-24T21:44:33Z")
> [@Oakminster](#): > > I think the AG has a moral and ethical duty to honestly advise the President regarding constitutional issues arising under statutes being chalenged in Court. Also think the President, as head of the Executive Branch, has the authority to set policy for his subordinates, including the AG. Here, I think Obama has listened to the advice of his AG, perhaps applied his own legal philosophy (remember, Obama taught Constitutional Law, so he speaks the same language), and reached a reasonable conclusion regarding constitutional problems with DOMA. I was trying to think of a way to put this yesterday and I couldn’t. Thank you for doing it, **Oakminster**. It is the White House’s job to set policy, and there is nothing improper about Obama doing so in this case. There is also nothing wrong with Obama consulting Holder about the law, since that’s also part of Holder’s job. [Previous page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=2) [Next page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=4)