Obama Administration to stop defending federal gay marriage law

[Doc Savage Fan]

So, now that the administration won't use tax payer dollars to defend the legality of a law that was signed in by another president 15 years ago, its subverting legislation? Not spending tax dollars is now bad?

But, not funding laws isn't bad right?

I'm not going to argue semantics with you in regard to the meaning of the word "subvert" and my post has nothing to do with tax dollars. Perhaps my questions were too difficult for you to understand.

 

[Carmen813]

The president is sworn / affirmed to uphold the constitution Period. He doesn't get to pick and choose.

It may be how it's written, but it has almost never been how it's practiced even if you go back to the early days of the country. Presidents pick and choose what the uphold all the time. I see no reason to get all upset about this one, at least the Obama administration had the courtesy to explain their reasoning and put out a press release. They aren't defending none of the law, only the part that applies to the federal govt.

 

[Thump553]

Read up on executive orders, please.

I'm not sure what point you are trying to make. I stated DODT was enacted into law by legislation passed by Congress and signed by a previous president. I stated it would take repealing legislation or a court finding DODT unconstitutional in order to repeal it. Are you claiming that a President can by Executive Order repeal legislation? If so I'd surely like to see a link to support that fantasy. If not, please clarify what you were trying to say.

 

[Thump553]

The president is sworn / affirmed to uphold the constitution Period. He doesn't get to pick and choose.

The oath to be taken by the president on first entering office is specified in Article II, Section 1, of the Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

That oath says nothing about enforcing a statute, and in particular a statute that the Department of Justice has determined is probably unconstitutional. This type of decision happens frequently.

I'm surpised the GOP/teabaggers aren't applauding the DOJ for not wasting money seeking to enforce invalid statutes-but I guess that goes against the script of everything Obama does or says is wrong.

As an aside, just this morning I heard a soundbite from Boehner saying the President should be focused on jobs, jobs, jobs instead of stuff like this. I guess he hasn't been paying attention to the stuff the House has been wasting its time on.

 

[classy]

I have been saying now all along, marriage will be a state thing. Some states will allow gay marriage and some won't.

 

[RedChief]

Just curious...is there precedent for this type of action? Seems like a convenient way to subvert legislation you don't agree with. The same approach could be used by a future President in regard to those seeking not to enforce Obamacare...no?

Looks like a slippery slope to me.

So when President Palin decides that Obamacare, the Endangered Species Act, the Alaska National Interest Lands Conservation Act, all federal gun control laws, and even the existence of the EPA is unconstitutional and therefore they won't defend them in court; we can expect liberals here to just accept it.

Of course liberals are hypocrites who believe the ends justify the means.

 

[Doc Savage Fan]

So when President Palin decides that Obamacare, the Endangered Species Act, the Alaska National Interest Lands Conservation Act, all federal gun control laws, and even the existence of the EPA is unconstitutional and therefore they won't defend them in court; we can expect liberals here to just accept it.

Of course liberals are hypocrites who believe the ends justify the means.

Bottom line...these are damn fair questions I asked. I'm surprised that no one has yet stepped up with a reasonably rational response.

 

[Thump553]

I have been saying now all along, marriage will be a state thing. Some states will allow gay marriage and some won't.

It's not that simple-states are bound to honor the laws of each other. if you get married in your home state that marriage is enforceable and valid in your home state. What if Nevada recognizes gay marriage and your state doesn't? That's part of the "problem" the DOMA was designed to address.

Also there is the matter of federal law and what constitutes a marriage under federal law-everything from income taxes to health care matters. The DOMA essentially says there is no such thing as a gay marriage as far as federal law is concerned, even if it is a valid marriage under your state's laws. From a seminar I went to a few years ago I recall that there were over five hundred federal laws affected.

Personally I think the better solution is for the government to get out of the marriage business all together. Marriage can be a religious event, civil unions will be the only "legal" marriages. All current marriages are legally grandfathered in as de facto civil unions, but in the future if you want the state/feds to recognize your union, you need a civil union ceremony and license. No imposition upon anyone's religious views and the churches can have their own defintion of what constitutes a marriage-it just won't mean anything legally.

 

[jonks]

Bottom line...these are damn fair questions I asked. I'm surprised that no one has yet stepped up with a reasonably rational response.

They are fair questions, which is why they've been answered in this thread multiple times already. The law will continue to be ENFORCED, it will merely not be DEFENDED in court BY THE ADMIN. OTHER INTERESTED PARTIES, including members of congress, CAN DEFEND the law in court in lieu of the DOJ. I have little doubt that "family values" groups will be happy to take up the gauntlet.

From Holder's official statement: " I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation."

This is not unprecedented, quick googling reveals both the GHWB, Clinton, and W (http://www.law.com/jsp/article.jsp?id=1202473959808&slreturn=1&hbxlogin=1) DOJs all opted not to defend certain laws. There is no slippery slope so long as this is a relatively rarely used tactic which historically it appears to be. Now, if Obama stops defending a dozen or so laws he doesn't like (not that the standard presidents have employed is anything so mercurial), we can talk about his abdication of executive responsibility.

In any event, the laws in such cases will continue to be enforced until a court rules them unconstitutional, not something judges tend to take lightly. So even if an admin refused to defend a law and no one else did either, the plaintiffs would still have to convince the judges that the law was unconstitutional and that they should take the powerful step of overruling congress. This does not happen often and that's not due to the DOJ putting on impeccable defenses nearly as much as it is due to the deference accorded to legislation.

 

[werepossum]

Is there a deficit of reading comprehension in P&N?

I'll keep this short and simple, and type slowly so you can keep up:

The Obama administration will continue to enforce the Defense of Marriage Act. It is the current law and this administration has stated that it will perform its Constitutional duty to enforce existing law.

The Departmant of Justice will no longer argue in support of this Act in any court in which its Constitutionality is being challenged. There is no obligation for this or any administration to argue in favor of an Act that administration believes is unconstitutional.

That sounds about right to me, except I think that if a President believes a law is unconstitutional, he has a moral responsibility to get it before SCOTUS as quickly as possible so that it may be either upheld (in which case he should enforce AND defend it) or be struck down so that he need not enforce it either.

IBMer seems to be in confusion between laws and programs. Laws need to be enforced; programs need to be funded. One cannot defund a law unless one defunds every agency that can enforce it. With the size of our federal government, that's highly likely.

 

[jonks]

As expected, the House will be defending the law.

http://www.mainjustice.com/2011/03/10/boehner-to-defend-doma/

See? No slippery slope, no miscarriage of justice, no anarchy. It'll go to court and both sides will have their say.

Note the nonsensical parting shot by Boehner. "This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally." The president did not unilaterally decide the constitutionality of the law, as he stated that he would continue to enforce it until and unless it was thrown out, and he explicitly invited the gop to defend it so the courts could render an opinion.

I am glad however that Boehner endorsed the court as the final arbiter of the constitutionality, which will make his objection to their final ruling and ranting about activist judges all the more amusing should his side lose.

 

[PeshakJang]

It's not that simple-states are bound to honor the laws of each other.

So when is Chicago going to start recognizing my concealed carry license?

At least my right to bear arms is protected by the constitution, marriage is not.

If states are forced to oblige the licenses of another state (gay marriage), then they damn well better have to recognize my CCW license. The issue is indisputable.

 

[jonks]

The issue is indisputable.

I dispute it.

That was easy.

If you want to get into it, Thump's statement was overbroad. Full faith & credit doesn't apply to legislated laws, but rather judicial decisions and the like. As to marriage, FF&C wouldn't be used, it would almost certainly be equal protection that would mandate recognition of the marriage. But that probably wouldn't happen until SCOTUS ruled anyway, in which case any state not recognizing gay marriage would not be forced to honor the law of another state, it would simply be the new law of the United States entire.