# 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:** 6
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [February 25, 2011, 5:24pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/101 "2011-02-25T17:24:55Z")
> [@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. It’s not necessarily common, but it does happen occasionally, and for those who follow the law, there’s nothing all that notable about it from a constitutional point of view. The executive branch is not constitutionally obligated to argue that a law is constitutional, if it does not believe it to be so. That’s within the executive’s powers. The executive is not subordinate to the legislature and while it is obligated to enforce duly passed laws, it is not obligated to defend their constitutionality in court. Federal judges are serious. They won’t throw out a law just because the attorney general isn’t standing there to defend it. On the other hand, they will take seriously the administration’s position on constitutionality, as they should. ---
**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, 5:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/102 "2011-02-25T17:35:02Z")
> [@Tilley](#): > > \>\>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: > > [Balkinization: John Roberts and the SG's Refusal to Defend Federal Statutes in \Metro Broadcasting v. FCC\](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. This is very interesting, thanks for posting it. Certainly not a one-to-one applicability in this case, but there’s definitely similarities. ---
**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 25, 2011, 5:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/103 "2011-02-25T17:35:34Z")
> [@Mr\_Smashy](#): > > **Factually** unconstitutional? According to whom? According to the Attorney General, who is charged with the task of determining which cases do and do not merit the expenditure of finite Justice Department resources. ---
**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, 5:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/104 "2011-02-25T17:35:46Z")
> [@Diogenes\_the\_Cynic](#): > > I said they failed, I didn’t say they didn’t try. You said “The JD made no attempt to defend Constitutionality.” ---
**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, 5:37pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/105 "2011-02-25T17:37:30Z")
> [@Diogenes\_the\_Cynic](#): > > According to the Constitution. Please cite the words in the constitution that make DOMA unconstitutional. Since you can’t do that, please cite the Supreme Court decision that holds orientation is a protected class. I’ll wait. Son. ---
**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 25, 2011, 5:38pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/106 "2011-02-25T17:38:54Z")
> [@yorick73](#): > > Do they have standing? In some cases, yes, as it’s a matter of public interest. Depends on what kind of challenge is presented. They’re free to file amicus briefs regardless, though. ---
**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, 5:45pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/107 "2011-02-25T17:45:56Z")
> [@Marley23](#): > > You said “The JD made no attempt to defend Constitutionality.” I thought that, in that particular instance, they had not. I was mistaken. I would still argue that it was a pretty half-assed attempt, though. ---
**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, 5:49pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/108 "2011-02-25T17:49:19Z")
> [@Mr\_Smashy](#): > > Please cite the words in the constitution that make DOMA unconstitutional. **Amendment XIV. Section 1** The last clause is the pertinent one. > [@](#): > > All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ---
**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, 5:50pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/109 "2011-02-25T17:50:14Z")
> [@Mr\_Smashy](#): > > Please cite the words in the constitution that make DOMA unconstitutional. Since you can’t do that, please cite the Supreme Court decision that holds orientation is a protected class. > > I’ll wait. Son. _Romer v. Evans_, 517 U.S. 620 (1996). While on the one hand claiming to not make sexual orientation a protected class, I don’t think any lawyer thinks that rational basis review was applied in this case. You can stop waiting now. Pops. ---
**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, 5:53pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/110 "2011-02-25T17:53:13Z")
> [@Diogenes\_the\_Cynic](#): > > I would still argue that it was a pretty half-assed attempt, though. Maybe so. I think this was an issue where they felt they had to go slowly rather than going from 0 to gay marriage in 4.6 seconds. They were wrong, and like I said upthread, the gradual approach got them nothing from Republicans and flack from Democrats, so it makes sense to finally drop 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, 6:03pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/111 "2011-02-25T18:03:49Z")
> [@Diogenes\_the\_Cynic](#): > > I thought that, in that particular instance, they had not. I was mistaken. I would still argue that it was a pretty half-assed attempt, though. You should **read** the link before you accuse someone else of _not_ reading the link. ---
**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, 6:16pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/112 "2011-02-25T18:16:47Z")
Yes I should. DOMA is still unconstitutional, though. ---
**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, 6:26pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/113 "2011-02-25T18:26:04Z")
> [@Marley23](#): > > The vast majority would be treated as matters of settled law. I wonder if this would hold true if Justice doesn’t bother to defend certain laws. > [@Marley23](#): > > 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. So you are justifying this action based on what you believe Republicans will do later? > [@Marley23](#): > > 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. So, if a lower court finds it unconstitutional, and the DOJ does not defend the law, presumably it will not be appealed and the lower court ruling is the law of the land. Since there are usually opposing decisions in the lower courts, the administration simply ignores any court that rules that the law is unconstitutional. The law dies right there unless Congress takes it up. This is overstepping bounds. > [@Marley23](#): > > 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. I don’t see any inconsistency there. > [@Marley23](#): > > 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 consider this type of action to be a dangerous precedent for any future adminstration…Dem or Pub. It’s not about the law…it’s about the what any administration can do with this option. I really am surprised that many on the left are not up in arms about this. So, from that state of mind, yes, it seems like that is what you and others here are saying. > [@Marley23](#): > > 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. Would the supreme court ever get the case? Regardless, presumably there would be no briefs from previous cases defending the constitutionality of 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 25, 2011, 6:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/114 "2011-02-25T18:35:35Z")
> [@yorick73](#): > > So, if a lower court finds it unconstitutional, and the DOJ does not defend the law, presumably it will not be appealed and the lower court ruling is the law of the land. Since there are usually opposing decisions in the lower courts, the administration simply ignores any court that rules that the law is unconstitutional. The law dies right there unless Congress takes it up. This is overstepping bounds. Look at the case you cited. The United States was not the sole defendant. ---
**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, 6:36pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/115 "2011-02-25T18:36:05Z")
> [@yorick73](#): > > I wonder if this would hold true if Justice doesn’t bother to defend certain laws. I think it would. > [@](#): > > So you are justifying this action based on what you believe Republicans will do later? No, I am not. Where are you getting this? I am responding to your hypothetical: you said you don’t think a Republican president would do this on the health care law, I said I think they would. It’s not a justification. The justification is that the law is discriminatory and wrong, and I think it’s unconstitutional. > [@](#): > > So, if a lower court finds it unconstitutional, and the DOJ does not defend the law, presumably it will not be appealed and the lower court ruling is the law of the land. I think **villa** explained why it doesn’t have to work that way. > [@](#): > > I consider this type of action to be a dangerous precedent for any future adminstration…Dem or Pub. I’m not sure it’s precedent at all. People who know more about the law than you or I don’t seem to think it’s any kind of earth shaking change, and I think there’s a reason for that. > [@](#): > > Would the supreme court ever get the case? Regardless, presumably there would be no briefs from previous cases defending the constitutionality of the law. I think this will wind up before the Supreme Court, yes. They’re the final arbiters of whether or not a law is Constitutional, and they’ll know what the federal government argued when it defended the Constitutionality of the law. ---
**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, 10:12pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/116 "2011-02-25T22:12:59Z")
> [@Marley23](#): > > No, I am not. Where are you getting this? I am responding to your hypothetical: you said you don’t think a Republican president would do this on the health care law, I said I think they would. It’s not a justification. The justification is that the law is discriminatory and wrong, and I think it’s unconstitutional. You seemed to be suggesting exactly that by bringing up what you think the Republicans **will** do. My hypothetical was based on what any future administration could do with laws they _feel_ are unconstitutional and why I am opposed to this. I used republican/obamacare in order to make the point that those who just wish DOMA to be gone by any means necessary should be careful what they wish for. My apologies if your opinion of this tactic has nothing to do with how you feel the “other side” will act. Regardless, just because **you** don’t think the law is constitutional is not reason enough for the DOJ to abandon it. Hell, just because the President thinks the law is unconstitutional is not enough for DOJ to abandon it. This is politicizing the DOJ. Their job is to defend laws on the books. They are suppose to operate from the assumption, since Congress passed and the President signed a particular law, that the laws on the books are constitutional. DOJ needs to leave legislating to the legislators and ruling a law unconstitutional to the judiciary. > [@Marley23](#): > > I think **villa** explained why it doesn’t have to work that way. I read elsewhere, but can no longer find it, that Congress is the only entity that can now defend DoMA. If this is incorrect I stand corrected. > [@Marley23](#): > > I think this will wind up before the Supreme Court, yes. They’re the final arbiters of whether or not a law is Constitutional, and they’ll know what the federal government argued when it defended the Constitutionality of the law. Perhaps you are right. It seems to me the chances of a law being ruled unconstitutional would increase without DOJ defending it. I’m sure the fact that the administration does not want to defend the law will have some bearing on the court ---
**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, 10:24pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/117 "2011-02-25T22:24:24Z")
> [@yorick73](#): > > You seemed to be suggesting exactly that by bringing up what you think the Republicans **will** do. I only brought up what the Republicans might do in response to your hypothetical. It’s not part of my reasoning here. > [@](#): > > Regardless, just because **you** don’t think the law is constitutional is not reason enough for the DOJ to abandon it. They didn’t abandon it because I think it’s unconstitutional. 😉 > [@](#): > > Hell, just because the President thinks the law is unconstitutional is not enough for DOJ to abandon it. I don’t agree. The law remains in force, so it’s not being circumvented. The government is no longer sponsoring a defense of the law because the president and the AG have concluded it’s not Constitutional. > [@](#): > > This is politicizing the DOJ. I’m going to have to bite my tongue very hard here. Earlier this decade we got a good idea of what politicizing the Justice Department looks like, and this isn’t it. > [@](#): > > Their job is to defend laws on the books. Their job is law _enforcement_. > [@](#): > > They are suppose to operate from the assumption, since Congress passed and the President signed a particular law, that the laws on the books are constitutional. This is the first time I’ve heard they are supposed to operate from that assumption. > [@](#): > > DOJ needs to leave legislating to the legislators and ruling a law unconstitutional to the judiciary. They have not changed the law and they have not ruled it unconstitutional. Those are the functions of other branches of government. It is their opinion that the law is unconstitutional, and they’re acting accordingly. They’re not doing anyone else’s job. > [@](#): > > Perhaps you are right. It seems to me the chances of a law being ruled unconstitutional would increase without DOJ defending it. I’m sure the fact that the administration does not want to defend the law will have some bearing on the court Maybe it will. Then again, the Roberts court has shown no hesitation in doing whatever the hell it feels like. 😉 ---
**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 26, 2011, 12:15am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/118 "2011-02-26T00:15:17Z")
> [@acsenray](#): > > It’s not necessarily common, but it does happen occasionally, and for those who follow the law, there’s nothing all that notable about it from a constitutional point of view. Can you give some examples? I’m not aware of any, and maybe the newspapers are sensationalizing this, but they sure seem to like calling it unprecedented. ---
**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 26, 2011, 12:16am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/119 "2011-02-26T00:16:53Z")
> [@Diogenes\_the\_Cynic](#): > > Yes I should. DOMA is still unconstitutional, though. Can you cite the SCOTUS ruling that declares gays to be a protected class awarded intermediate or strict scrutiny? Because if you can’t, then your statement is of questionable veracity. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 12:30am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/120 "2011-02-26T00:30:25Z")
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