# 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:** 4
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 24, 2011, 9:49pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/61 "2011-02-24T21:49:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. It seems the President and DOJ went a step further than just not enforcing the law. By not defending the law it seems they have effectively circumvented the Legislative branch entirely. Has this ever been done before? It would seem to me, but I don’t know for sure, that DOJ has an obligation to defend any law on the books. Out of curiosity, what would happen if DOJ just decided to quit defending civil rights legislation or Roe v Wade? > [@Really\_Not\_All\_That\_Bright](#): > > 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. Do they have standing? ---
**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, 9:59pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/62 "2011-02-24T21:59:26Z")
> [@yorick73](#): > > It seems the President and DOJ went a step further than just not enforcing the law. Cite that they’re not enforcing the law? ---
**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, 9:59pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/63 "2011-02-24T21:59:47Z")
> [@yorick73](#): > > Do they have standing? My heart would break if _Lujan_ was used to hurt a right wing group… ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [February 24, 2011, 10:03pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/64 "2011-02-24T22:03:57Z")
> [@John\_Mace](#): > > Perhaps he should hire someone who can. Er, why? Throwing up your hands and declaring a problem to be insoluble is the correct answer when given a problem that is, in fact, insoluble. For example, if Congresscritters took it into their pointy little heads to (for instance) ban talk radio, would the Attorney General be obligated to come up with some sort of insane troll logic to defend the ridiculous proposition that the such a law is constitutional? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 24, 2011, 10:06pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/65 "2011-02-24T22:06:28Z")
> [@Marley23](#): > > Cite that they’re not enforcing the law? I didn’t say that they were not enforcing the law. I said that they went a step further in my opinion. Read the post I quoted. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2011, 12:41am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/66 "2011-02-25T00:41:28Z")
> [@John\_Mace](#): > > Perhaps he should hire someone who can. He doesn’t believe anybody can, and the President agrees. > [@](#): > > Why would they need standing to defend the law? Because the authority to enforce federal laws is expressly given to the executive branch. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2011, 12:44am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/67 "2011-02-25T00:44:10Z")
> [@yorick73](#): > > It seems the President and DOJ went a step further than just not enforcing the law. By not defending the law it seems they have effectively circumvented the Legislative branch entirely. Has this ever been done before? It would seem to me, but I don’t know for sure, that DOJ has an obligation to defend any law on the books. > > Out of curiosity, what would happen if DOJ just decided to quit defending civil rights legislation or Roe v Wade? The Courts would still reject challenges. Just because the DOJ doesn’t show up to defend a challenge doesn’t mean the challenge is going to win. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2011, 12:49am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/68 "2011-02-25T00:49:33Z")
> [@yorick73](#): > > I didn’t say that they were not enforcing the law. I said that they went a step further in my opinion. Read the post I quoted. Your understanding is incorrect. Obama has not circumvented the legislative branch. DOMA is still law, Its Constitutionality will be decided by the courts, not by Obama. If the Courts decided the law is unconstitutional, they will strike it down, if not, not. The DOJ showing up to defend a law does not make any difference to its Constitutionality, and it’s not obligated to make a pretence of defending Constitutionality where it doesn’t exist. ---
**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 25, 2011, 12:53am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/69 "2011-02-25T00:53:08Z")
> [@Steve\_MB](#): > > Er, why? Throwing up your hands and declaring a problem to be insoluble is the correct answer when given a problem that is, in fact, insoluble. It’s easily solvable. There is nothing objectively true about the various levels of scrutiny used to evaluate laws or which groups do or do not rate which level of scrutiny. > [@DtC](#): > > Because the authority to enforce federal laws is expressly given to the executive branch. Arguing the constitutionality of a law in court is not an enforcement activity. ---
**Author:** ![Sitnam](https://avatars.discourse-cdn.com/v4/letter/s/6a8cbe/32.png) [@Sitnam](https://boards.straightdope.com/u/Sitnam)\ **Post date:** [February 25, 2011, 1:18am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/70 "2011-02-25T01:18:05Z")
> [@villa](#): > > 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. Right! I have no idea why this is even an issue, if this is indeed the law, how could this situation _not_ be a conflict of interest? ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 25, 2011, 2:50am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/71 "2011-02-25T02:50:59Z")
> [@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. 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. I was responding to Oakminster’s argument that Congress shouldn’t hire lawyers to defend laws that the DOJ considers blatantly unconstitutional. Under his scenario, the DOJ would effectively be deciding what is unconstitutional, because if they don’t defend a law then no one else would. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 25, 2011, 3:30am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/72 "2011-02-25T03:30:23Z")
> [@Mr\_Smashy](#): > > 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). I say fuck it. We’ve already seen in the past 2 years that the Republicans will strike first on any new depth to sink to. I don’t believe for one second that with all the screaming about socialism and how Obama’s a secret Muslim and not a real American, that a Republican president, once in power, will simply line-item veto and ignore any of the progressive legislation Obama’s enacted They cried and cried about the deficit, then one of their first moves was to attack a health care law that saves money. They claim to be fiscally responsible, and they immediately exclude their own pet projects from consideration. Their leaders encourage violence and refuse to take responsibility. Well fuck that I hope Obama ignores DOMA. I expect that any Republican in the future will do worst. Playing by the rules gets us nothing but an annoyed liberal base and a bully conservative base that thinks we’ll cave to anything. Obama should ignore any law he deems unconstitutional because the next Republican president will probably start writing laws in by himself. And if it’s Palin, she’ll probably carve amendments out of the bill of rights personally ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 25, 2011, 5:27am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/73 "2011-02-25T05:27:32Z")
> [@Diogenes\_the\_Cynic](#): > > Your understanding is incorrect. Obama has not circumvented the legislative branch. DOMA is still law, Its Constitutionality will be decided by the courts, not by Obama. If the Courts decided the law is unconstitutional, they will strike it down, if not, not. The DOJ showing up to defend a law does not make any difference to its Constitutionality, and it’s not obligated to make a pretence of defending Constitutionality where it doesn’t exist. Sure…nobody will defend it yet the court will still find it constitutional. Just stop and think about what you are saying. According to Holder, he and Obama determined DADT is unconstitutional. So, Obama’s justice department will not defend a law on the books…effectively circumventing the Legislative branch. They also determined that the law is unconstitutional…how Justice and the president can do that is beyond me. Forget about the issue at hand. This sets dangerous precedent for any President to effectively eliminate any law they don’t like. One job of the executive branch is to uphold laws on the books regardless of personal ideology. As **Mr Smashy** and I have pointed out, the next Republican president could refuse to defend Roe v Wade or the individual mandate. My argument is not about the particular law but the potential consequences. This is one step closer to becoming Absurdistan. I know that you, and others here who may disagree with DOMA, wish to see the law found unconstitutional or repealed. That’s fine…that’s the way these issues should be handled. I believe you also know that the way this administration is going about this is simply dangerous. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 25, 2011, 5:37am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/74 "2011-02-25T05:37:20Z")
> [@yorick73](#): > > I didn’t say that they were not enforcing the law. I said that they went a step further in my opinion. Read the post I quoted. I thought you were saying they were doing both because of the way you said “just.” Nevermind, then. > [@yorick73](#): > > They also determined that the law is unconstitutional…how Justice and the president can do that is beyond me. That’s their opinion about the law. > [@](#): > > This sets dangerous precedent for any President to effectively eliminate any law they don’t like. Not unless you think the government is constantly being sued over every law on the book. This kind of thing could only apply to laws that are being challenged with lawsuits against the government. > [@](#): > > As **Mr Smashy** and I have pointed out, the next Republican president could refuse to defend Roe v Wade or the individual mandate. _Roe v. Wade_ is not a law, it’s a court decision. A Republican president probably would not defend the health care law, but that doesn’t affect what a court is going to do. Is it a problem that Republican Attorneys General are involved in challenging that law in a bunch of states? > [@](#): > > I believe you also know that the way this administration is going about this is simply dangerous. Not at all. I’m glad they’ve stopped dragging their feet on this issue. Addressing gay rights gradually wasn’t working for them anyway. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2011, 5:48am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/75 "2011-02-25T05:48:34Z")
> [@yorick73](#): > > Sure…nobody will defend it yet the court will still find it constitutional. Nobody has to defend it for the court to find it Constitutional. If you get a speeding ticket and try to argue to the judge that speed limits are unconstitutional, he isn’t going to need Eric Holder to stand up and argue the other side. He’s going to tell you to shut up and pay your fucking ticket. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [February 25, 2011, 6:06am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/76 "2011-02-25T06:06:10Z")
> [@Lakai](#): > > 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. More? The point is equal protection and equal rights. Deciding a group of people have no right to marry and inherit each others shared wealth ,is discriminatory and an abuse of law. That is singling a group out to enjoy less rights. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 25, 2011, 6:07am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/77 "2011-02-25T06:07:34Z")
> [@Diogenes\_the\_Cynic](#): > > Nobody has to defend it for the court to find it Constitutional. If you get a speeding ticket and try to argue to the judge that speed limits are unconstitutional, he isn’t going to need Eric Holder to stand up and argue the other side. He’s going to tell you to shut up and pay your fucking ticket. I realize that but, if you believe that arguments in court have any meaning, you must realize that not defending a law is tantamount to agreeing with the plaintiffs. If, as in most constitutional cases, it is a close call then DADT will certainly be found unconstitutional as a result. Unless the case is a sure thing a defense is a necessity. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2011, 6:15am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/78 "2011-02-25T06:15:44Z")
> [@yorick73](#): > > I realize that but, if you believe that arguments in court have any meaning you must realize that not defending a law is tantamount to agreeing with the plaintiffs. So what? If the law is Constitutional, it will stand up anyway. If not, not. Besides, Holder has determined that no Constitutional defense is possible anyway, so it would be a waste of time to try. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 25, 2011, 6:30am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/79 "2011-02-25T06:30:31Z")
> [@Marley23](#): > > Not unless you think the government is constantly being sued over every law on the book. This kind of thing could only apply to laws that are being challenged with lawsuits against the government. I would wager that most laws **could** be challenged on constitutional grounds. [QUOTE=Marley23;13504783_Roe v. Wade_ is not a law, it’s a court decision. A Republican president probably would not defend the health care law, but that doesn’t affect what a court is going to do. Is it a problem that Republican Attorneys General are involved in challenging that law in a bunch of states?[/quote] My mistake on Roe v Wade. I disagree that a Republican president would not defend the health care law. Have past administrations refused to defend the constitutionality of laws that they disagree with? I honestly don’t know the answer to this. I also disagree that not defending a law has no effect on what a court will do. Are you saying that cases should not even be argued? I’m confused about your question on Republican Attorneys General. What does that have to do with anything we are discussing? [QUOTE=Marley23;13504783Not at all. I’m glad they’ve stopped dragging their feet on this issue. Addressing gay rights gradually wasn’t working for them anyway.[/QUOTE] So, for you, the ends justify the means? I’m really surprised that people don’t see the danger inherent in this policy. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 25, 2011, 6:35am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/80 "2011-02-25T06:35:20Z")
> [@Diogenes\_the\_Cynic](#): > > So what? If the law is Constitutional, it will stand up anyway. If not, not. Besides, Holder has determined that no Constitutional defense is possible anyway, so it would be a waste of time to try. You are fully aware that very few cases are that clear-cut. I don’t think any of the lower court rulings have found DOMA to be unconstitutional. I seriously doubt that there is no Constitutional defense. [Previous page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=3) [Next page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=5)