Bumping this because Obama has told the Justice Department to stop defending DOMA in lawsuits challenging the law’s constitutionality.
I knew I voted for the right guy.
And about bloody time too. DOMA is, and always has been, a disgrace.
He may be slow, but he’s not entirely stupid.
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?
Also not liking the idea of Congress possibly hiring its own lawyers to defend DOMA now that DoJ won’t be doing it. I see no reason taxpayers should have to pay for the U.S. to litigate on both sides of the issue.
That said, kudos to Obama and Holder for making this decision. Should have come sooner, but better late than never.
To me, it seems more like intermediate scrutiny. Now whether that is going to be the level of intermediate scrutiny that already exists (for gender based distinctions) or a new one (which arguably we already have since Romer for sexuality distinctions, though the Court hasn’t admitted it), I don’t know.
I don’t like DOMA, but I also don’t like the idea of the executive branch deciding which of the laws duly passed by the legislative branch that it will defend (or not). Didn’t Bush get all kinds of heat for doing exactly that, and rightly so?
I don’t recall anything of the sort. I recall the Bush Administration getting flack for his signing statements, which basically said which parts of laws he intended to ignore, but in the linked article, it’s clear the Obama Administration intends to continue enforcement of DOMA until it is properly nullified, they’re just not going to stand in the way of that nullification.
Why the need for namecalling? 
There’s also the issue of the White House being involved in making the decision, and whether the Attorney General’s legal determination should have been insulated from the participation of political actors.
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.
Here is the DOJ’s statement. They had been defending Section 3 of DOMA in circuits where rational basis scrutiny was established, but now that it’s been challenged in the 2nd Circuit, where the level of scrutiny hasn’t been established, the DOJ will not argue for its constitutionality.
ZOMG executive activism!!!
Has there been a case of Congress independently defending a law - whether or not the AG did?
There’s Bowsher v. Synar, over the constitutionality of the Gramm-Rudman balanced budget act, but that was a case where the Executive was actually suing Congress (or vice-versa; I don’t recall).
I should have excluded that kind of case. Didn’t Congress sue the President for access to secret documents during Watergate? If Congress is a party, then they certainly can.
Maybe one could hope they’d realize what a jackass bigoted thing the law was and let it die?
No.
Have you noted the makeup of this Congress? Fat chance of that happening.
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.
Christ. To read some of the comments on his Facebook page, you’d think he announced he was marrying Joe Biden.