# 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:** 5
**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, 1:14pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/81 "2011-02-25T13:14:52Z")
The Justice Department has determined that it cannot make a Constitutional defense for DOMA, and it has no obligation to try. ---
**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 25, 2011, 1:39pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/82 "2011-02-25T13:39:30Z")
> [@YogSosoth](#): > > 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 Wait… so you decry the Republicans for doing the dirty tricks first, in general (at least, that’s what I think your first sentence says)… then want Obama to do it, on the assumption that the GOP will do even worse somehow down the road? Is that the way our government is supposed to work? And again, to the group: is there any precedent for this? Has a president just unilaterally decided to ignore a law because he didn’t like it? Frankly, this reminds me a little of the complaining about W’s ‘signing statements’ he used to implement, which were his unique interpretations of laws. I seem to remember people on this board complaining, calling him King George, The Decider In Chief, not following the law/process, etc. This seems 100x worse. PS Not that I’m against gay marriage or anything - why shouldn’t they be as miserable as the rest of us. But that’s completely besides the point. ---
**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, 1:53pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/83 "2011-02-25T13:53:18Z")
> [@Diogenes\_the\_Cynic](#): > > The Justice Department has determined that it cannot make a Constitutional defense for DOMA, and it has no obligation to try. I wonder how common this is-- for an administration to refuse to defend a law in court. It must not be that uncommon for an administration to think certain laws are unconstitutional. Is this something like signing statements that everyone was aghast at and then we all found out that every president since George Washington had used them? Not that I’m asking \*\*Dio \*\*to answer those questions… just using his post as a jumping off point. ---
**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, 1:55pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/84 "2011-02-25T13:55:16Z")
He’s not ignoring the law. He’s still enforcing it. The JD has just determined that it can’t defend it against a Constitutional challenge. That’s not a “dirty trick,” it’s just the result of the law being factually unconstitutional. ---
**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, 1:57pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/85 "2011-02-25T13:57:46Z")
> [@John\_Mace](#): > > I wonder how common this is-- for an administration to refuse to defend a law in court. It must not be that uncommon for an administration to think certain laws are unconstitutional. I think it’s fairly uncommon for laws to actually BE unconstitutional. > [@](#): > > Is this something like signing statements that everyone was aghast at and then we all found out that every president since George Washington had used them? I’ve never heard of an administration doing this before, but most laws aren’t this high profile. ---
**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 25, 2011, 2:03pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/86 "2011-02-25T14:03:16Z")
> [@Diogenes\_the\_Cynic](#): > > He’s not ignoring the law. He’s still enforcing it. The JD has just determined that it can’t defend it against a Constitutional challenge. That’s not a “dirty trick,” it’s just the result of the law being factually unconstitutional. **Factually** unconstitutional? According to whom? The Constitution does not say anything about marriage, and the Supreme Court has never found orientation to be a protected class. Obama tried and failed to get Congress to pass the Employment Non-Discrimination Act, which would have done that. DOMA passed with wide bipartisan support. And **Marley** , when you say > [@](#): > > A Republican president probably would not defend the health care law, but that doesn’t affect what a court is going to do. Are you saying that if one side unilaterally lays down, that won’t affect the court’s likely decision, making it more likely that it will be overturned? Really? Then why show up at all, ever, to defend any law? Again, whether this bill is about Gay Marriage or the possibility of life on Mars is completely irrelevant. And I can’t help but think that if this were a GOP president pulling this kind of stunt, that this board would be all over her 😉 ---
**Author:** ![Meatros](https://avatars.discourse-cdn.com/v4/letter/m/b4bc9f/32.png) [@Meatros](https://boards.straightdope.com/u/Meatros)\ **Post date:** [February 25, 2011, 2:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/87 "2011-02-25T14:35:01Z")
> [@John\_Mace](#): > > I wonder how common this is-- for an administration to refuse to defend a law in court. It must not be that uncommon for an administration to think certain laws are unconstitutional. While not totally similar, the federal stance on medical marijuana leaps to mind: [Attorney General’s position](http://blogs.usdoj.gov/blog/archives/192) > [@](#): > > \*\*As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. \*\*For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities. - > [@](#): > > Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. **Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.** ---
**Author:** ![Tilley](https://avatars.discourse-cdn.com/v4/letter/t/53a042/32.png) [@Tilley](https://boards.straightdope.com/u/Tilley)\ **Post date:** [February 25, 2011, 3:22pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/88 "2011-02-25T15:22:30Z")
\>\>And again, to the group: is there any precedent for this? Has a president just unilaterally decided to ignore a law because he didn’t like it?\<\< Apparently there is precedent. For different reasons, as outlined in this piece: [http://balkin.blogspot.com/2005/09/john-roberts-and-sgs-refusal-to-defend.html](http://balkin.blogspot.com/2005/09/john-roberts-and-sgs-refusal-to-defend.html) . Interestingly, the example the author focuses upon involves today’s SCOTUS Chief Justice, John Roberts. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 25, 2011, 3:34pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/89 "2011-02-25T15:34:16Z")
> [@Marley23](#): > > _Roe v. Wade_ is not a law, it’s a court decision. This has been a really useful filter to me in these discussions. The moment anyone says to me “but a future Republican won’t defend _Roe_” I immediately know they don’t get it. ---
**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, 4:05pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/90 "2011-02-25T16:05:09Z")
> [@Diogenes\_the\_Cynic](#): > > The Justice Department has determined that it cannot make a Constitutional defense for DOMA, and it has no obligation to try. That’s funny…I recall they already have made a Constitutional defense: > **[USA Motion to Dismiss DOMA Case | PDF | Defense Of Marriage Act | Suspect...](https://www.scribd.com/document/16355867/Obama-s-Motion-to-Dismiss-Marriage-case)** > > This document discusses a motion by the United States to dismiss a case challenging the constitutionality of the Defense of Marriage Act. It provides background on the case and the law being challenged, then makes arguments on jurisdiction, standing,... ---
**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, 4:11pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/91 "2011-02-25T16:11:01Z")
> [@yorick73](#): > > I would wager that most laws **could** be challenged on constitutional grounds. The vast majority would be treated as matters of settled law. > [@](#): > > I disagree that a Republican president would not defend the health care law. I think we’ll have to agree to disagree on that. Many of the legal challenges to the law (if not all of them) were brought by Republican governors and AGs, and many Republican legislators pushed hard for a repeal. Since that failed, I find it easy to believe they’d also take this tack if they had to. > [@](#): > > Have past administrations refused to defend the constitutionality of laws that they disagree with? I honestly don’t know the answer to this. Neither do I. > [@](#): > > 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? Proponents of the move are saying it will make it easier for courts to declare the law unconstitutional. We’ll see. I imagine the legal theory in defense of the law has already been established and I don’t know how much difference it makes if the government doesn’t argue for it. I don’t agree with the theory that the White House overstepped its bounds and interfered with the legislature here. > [@](#): > > I’m confused about your question on Republican Attorneys General. What does that have to do with anything we are discussing? If it’s wrong for a president and the AG to stop defending a law, is it wrong for a governor and a state AG to challenge it in the first place? I’m wondering if this is an inconsistent position. [quote] So, for you, the ends justify the means?/QUOTE] Ah yes, the ultimate argument. 😛 I never said the ends justified the means, and I don’t think I even implied anything close to it. I said I support the end and I don’t have a problem with this means. DOMA was where Clinton last me, and it’s an outdated, discriminatory law. > [@Mr\_Smashy](#): > > Are you saying that if one side unilaterally lays down, that won’t affect the court’s likely decision, making it more likely that it will be overturned? Really? I don’t think it affects what the Supreme Court will do, and that’s where this is going to wind up. Even some of the justices think oral arguments are unnecessary since they can read briefs from the previous cases, and they can rule on whatever basis they choose. > [@](#): > > Then why show up at all, ever, to defend any law? Because that’s what’s done. > [@](#): > > And I can’t help but think that if this were a GOP president pulling this kind of stunt, that this board would be all over her 😉 This is, as ever, an argument free of facts and any meaningful content. ---
**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, 4:12pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/92 "2011-02-25T16:12:10Z")
> [@Mr\_Smashy](#): > > **Factually** unconstitutional? According to whom? According to the Constitution. > [@](#): > > The Constitution does not say anything about marriage, and the Supreme Court has never found orientation to be a protected class. It’s about equal protection, son. Look up the phrase “rational basis.” > [@](#): > > Are you saying that if one side unilaterally lays down, that won’t affect the court’s likely decision, making it more likely that it will be overturned? Not in the slightest. > [@](#): > > Really? Then why show up at all, ever, to defend any law? You don’t have to. > [@](#): > > Again, whether this bill is about Gay Marriage or the possibility of life on Mars is completely irrelevant. And I can’t help but think that if this were a GOP president pulling this kind of stunt, that this board would be all over her 😉 It’s not a “stunt.” The AG just can’t devise a constitutional defense where none exists. Blame the law. No adminsitration is required to field constitutional challenges against any law anyway. DOMA is going to get struck by the courts, regardless. And if a Republican President decided not to defend an unconstitutional law, he/she would be applauded by me. ---
**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, 4:13pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/93 "2011-02-25T16:13:57Z")
> [@yorick73](#): > > That’s funny…I recall they already have made a Constitutional defense: > > [USA Motion to Dismiss DOMA Case | PDF | Defense Of Marriage Act | Suspect Classification](http://www.scribd.com/doc/16355867/Obamas-Motion-to-Dismiss-Marriage-case) Nope. They failed. ---
**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, 4:24pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/94 "2011-02-25T16:24:59Z")
> [@Diogenes\_the\_Cynic](#): > > Nope. They failed. 1. The case was made by Holders DOJ 2. How did they fail? The suit was dismissed and the SCOTUS refused to take up the case. ---
**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, 4:42pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/95 "2011-02-25T16:42:26Z")
> [@yorick73](#): > > 1. The case was made by Holders DOJ > 2. How did they fail? The suit was dismissed and the SCOTUS refused to take up the case. Did you even read your own link? The JD made no attempt to defend Constitutionality. They moved to dismiss based on standing. The motion and the dismissal had nothing to do with constitutionality and did not even address it. The JD just said the plaintiff didn’t have standing, not that the law was Constitutional. ---
**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, 4:52pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/96 "2011-02-25T16:52:22Z")
> [@Diogenes\_the\_Cynic](#): > > They moved to dismiss based on standing. The motion and the dismissal had nothing to do with constitutionality and did not even address it. That’s not true. They said the plaintiff had no standing, but went on to argue the law is Constitutional. Those arguments start on page 22 of the document (page 32 in the document viewer in the link). The government says DOMA doesn’t violate the plaintiffs’ due process or equal protection under the Fifth Amendment, does not violate the right to privacy found in _Griswold v. Connecticut_, does not infringe on their freedom of speech, and does not violate the Ninth Amendment. ---
**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, 4:54pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/97 "2011-02-25T16:54:59Z")
That still had nothing to do with why the complaint was dismissed, and Holder himself admits the law is unconstitutional, so I’ll stand by my position that he “failed” to make that case. ---
**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, 4:58pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/98 "2011-02-25T16:58:27Z")
He may have failed to make the case, but **yorick73** said the administration had previously defended the Constitutionality of the law. They have, which is why it matters that they are now saying it’s unconstitutional and they won’t defend it. ---
**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, 5:00pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/99 "2011-02-25T17:00:01Z")
I said they failed, I didn’t say they didn’t try. ---
**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 25, 2011, 5:13pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/100 "2011-02-25T17:13:03Z")
> [@John\_Mace](#): > > Perhaps he should hire someone who can. My understanding of legal ethics is that a lawyer is not required to take a case where he thinks his client is in the wrong, but is required to defend that case if he does take it. If Holder believes the law is unconstitutional, why should he be required to get someone whose legal judgment he would consider suspect? If he were not defending it due to lack of resources, that would be another case. If Congress had passed a law abridging freedom of the press, and overrode a presidential veto, would the AG be forced to find an extremist lawyer to defend it? > [@](#): > > 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. If you remember in the suit on Prop 8 there is still an open question of whether the Prop 8 supporters had standing to defend it when the government did not. They were not plaintiffs to the suit. Congress has more of a connection with this law than the Prop 8 supporters do with that case, so the result of one case will not determine the other, but the Prop 8 case doesn’t have a separation of powers issue. [Previous page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=4) [Next page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=6)