Wow: Obama to appeal federal judge’s ruling striking down Defense of Marriage Act

posted at 11:58 am on October 13, 2010 by Allahpundit

Why does the president hate gay marriage?

The Obama administration decided on Tuesday to appeal a judge’s rulings that prevented the U.S. government from banning same-sex marriages, a move that could undermine support among President Barack Obama’s traditional liberal base ahead of a key election.

The Obama administration filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act, or DOMA, that barred gay marriages, even though Obama had previously opposed the law…

“As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed,” said Justice Department spokeswoman Tracy Schmaler. “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”

Traditionally, but not always. Ever heard of the case Dickerson v. United States? Andy McCarthy mentioned it this morning at the Corner but I’d already thought of it myself in this context. In a nutshell, shortly after the Supreme Court’s famous ruling in Miranda v. Arizona in 1966, Congress tried to eliminate the Miranda warnings on grounds that they weren’t really based on the Constitution and therefore could be overridden by federal legislation. The statute that Congress ended up passing was almost never enforced afterward, but finally it came before the Rehnquist Court in 2000. The defendant, an accused bank robber, argued that incriminating statements he had made to the cops should be tossed out of court because he wasn’t given his Miranda warnings. The DOJ — which should have argued that no warnings were required thanks to the federal statute that Congress had passed — sided with the defendant and argued that the statute was unconstitutional. The Rehnquist Court actually had to appoint a third-party lawyer to defend the law because the DOJ wouldn’t do it. (If this sounds vaguely familiar in the gay marriage context, there’s a very good reason.) Long story short, then — yes, it’s customary for the Justice Department to defend federal laws, but if they feel strongly that a particular statute is unconstitutional, they can pass on it. In which case, what’s The One’s excuse for appealing here?

My guess as to his strategy here is that he’s going to split the baby. He’ll appeal this ruling in order to placate indies and black voters who oppose gay marriage and/or are leery about judges “legislating from the bench,” and then he’ll announce that he won’t appeal yesterday’s DADT ruling in order to placate the lefties and young voters whom he needs to turn out next month. That makes good sense from a polling standpoint, actually: Gay marriage is increasingly a 50/50 issue whereas large majorities are already in favor of repealing DADT. If you have to take a chance politically on either one, the latter’s your best bet. Just one question: Isn’t “don’t ask, don’t tell” also a federal statute? As such, according to the DOJ’s own logic here, aren’t they duty bound to appeal yesterday’s decision now? I think the left’s going to want some answers. Make popcorn!


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50 years ago, homosexuals were viewed in much the same way as pedophiles in most of society. My point, which Esther makes quite well, is that it is simply a society defined arrangement.

We believe that sex with children is wrong. We can come up with all kinds of argumetns to support this, but ultimately, it can be an arbitrary line. For instance, it used to be quite normal for a girl to be married at 14 or 15. Now it is considered wrong. Why?

relationships and the legal status of relationships is best left to the democratic process. brothers and sisters can’t marry, polygamy is illegal, and marriage is defined at one man / one woman.

And, if we are basing equal protection on “being born that way”, shouldn’t we wait until there is scientific proof for that position. As of right now, it is a theory that has not been proven one way or another.

Monkeytoe on October 13, 2010 at 2:07 PM

Culture changes. 50 years ago women were viewed differently. The age of consent will go up and down–even today it varies by state. Changing cultural attitudes toward gay couples is driving the political process, more so than the politicians driving culture.

dedalus on October 13, 2010 at 2:20 PM

It’s a right they are endowed with and which the government recognizes, restricting politicians in writing laws that limit people’s ability to exercise that right.

dedalus on October 13, 2010 at 12:38 PM

Endowed with how, and by whom?

pannw on October 13, 2010 at 2:46 PM

right4life on October 13, 2010 at 2:16 PM

The article acknowledges that Scandinavian marriage had undergone sustained decline before gay marriage. Similar declines have occurred in the US without gay marriage.

Pressuring couples to stay together has been a function of society, and arguably beneficial to its stability. However, from a personal perspective, while I can see how my marriage is weakened by each divorce (especially when close friends of ours, who have raised kids, split), the effect of gays marrying is less perceptible.

dedalus on October 13, 2010 at 2:54 PM

Endowed with how, and by whom?

pannw on October 13, 2010 at 2:46 PM

According to the document, apparently whoever created them.

dedalus on October 13, 2010 at 2:56 PM

the effect of gays marrying is less perceptible.

dedalus on October 13, 2010 at 2:54 PM

did you miss this part?

The Nordic family pattern–including gay marriage–is spreading across Europe. And by looking closely at it we can answer the key empirical question underlying the gay marriage debate. Will same-sex marriage undermine the institution of marriage? It already has.

right4life on October 13, 2010 at 3:01 PM

Culture changes. 50 years ago women were viewed differently. The age of consent will go up and down–even today it varies by state. Changing cultural attitudes toward gay couples is driving the political process, more so than the politicians driving culture.

dedalus on October 13, 2010 at 2:20 PM

That is exactly my point. It is an appropriate issue for democracy through our elected representatives. It is not a “right” to be found in the constitution. Changing cultural attitudes don’t a new “right” make.

Monkeytoe on October 13, 2010 at 3:29 PM

Wrong question. Since homosexual relationships have never been considered marriages before, why does the government have the right to call them marriages now? Does everything now mean whatever the government decides it means?

tom on October 13, 2010 at 1:18 PM

In that case, why recognize them in any capacity? We never did that before either? Why are civil unions acceptable but not marriage?

Plus marriage has already changed drastically in unprecedented ways, so the argument that they’re not allowed in just because they’ve never been allowed in isn’t a logical one either. Just actually come up with a reason why they shouldn’t be let in the institution. Since it’s never been done, theoretically this isn’t a problem.

Esthier on October 13, 2010 at 3:35 PM

Culture changes. 50 years ago women were viewed differently. The age of consent will go up and down–even today it varies by state. Changing cultural attitudes toward gay couples is driving the political process, more so than the politicians driving culture.

dedalus on October 13, 2010 at 2:20 PM

Plus, 14 and 15 year old women today are simply not as mature as they were back then. In fact, many 22 year olds still aren’t. It’s likely a product of our longer life expectancies in addition to our emphasis on education, because we place a greater importance on going to school than on getting a job and gaining financial independence.

Esthier on October 13, 2010 at 3:40 PM

What I want to know is if Gays can serve openly, will they be boarded with the same sex? Or separate boarding as men and women are boarded separate to discourage fraternization? Interesting exchange I had with Tapper on twitter over it:
“@jaketapper here’s a q 4 someone. once gays can serve openly, will they accept separate boarding as men and women are separate?”
and his response
“@Zaggs why not make them wear pink stars?”.
http://twitter.com/zaggs

Didn’t know such a reasonable question automatically made me a bigot.

Zaggs on October 13, 2010 at 3:52 PM

Plus, 14 and 15 year old women today are simply not as mature as they were back then. In fact, many 22 year olds still aren’t. It’s likely a product of our longer life expectancies in addition to our emphasis on education, because we place a greater importance on going to school than on getting a job and gaining financial independence.

Esthier on October 13, 2010 at 3:40 PM

Proving my case. We can come up with many rationalizations or arguments for why this arbitrary number is set.

Argued a different way, we are all born with an innate biological push to procreate. Thus, why doesn’t the equal protection clause provide a right to anyone who hits puberty to have sex with whoever they want?

there is no right to homosexual marriage in the U.S. constitution, just as there is no right for a pedophile to have sex with 14 year-old who has hit puberty with the 14 year-old’s consent.

Let democracy decide the gay marriage issue. Don’t invent new rights by legislating from the bench.

Monkeytoe on October 13, 2010 at 3:58 PM

Plus, 14 and 15 year old women today are simply not as mature as they were back then. In fact, many 22 year olds still aren’t. It’s likely a product of our longer life expectancies in addition to our emphasis on education, because we place a greater importance on going to school than on getting a job and gaining financial independence.

Esthier on October 13, 2010 at 3:40 PM

I’d also point out that I believe the opposite is true. People mature more slowly because we infantalize them and don’t demand they act responsibly – not b/c we are living longer or because we emphasize education more.

Monkeytoe on October 13, 2010 at 4:05 PM

Proving my case. We can come up with many rationalizations or arguments for why this arbitrary number is set.

Monkeytoe on October 13, 2010 at 3:58 PM

If we can come up with rationalizations, then how is it arbitrary? The age of consent is based on when we feel a human is old enough to understand the situation and make an informed decision. Delayed development in our society has pushed that date further and further back.

I get and largely agree with the point you’re trying to make, just not the way you’re trying to make it. A better way might be to say that if our rights are determined by what is and is not morally taboo, then homosexual marriages are wholly dependent on how society feels about their relationships. We may be OK with them (the relationships, not marriages) now, but social mores seems to work as a pendulum and can easily swing against gays in a few decades. For instance, polygamy long used to be the norm as did incest, but these days, engaging in either can get you put in jail.

Esthier on October 13, 2010 at 4:19 PM

I’d also point out that I believe the opposite is true. People mature more slowly because we infantalize them and don’t demand they act responsibly – not b/c we are living longer or because we emphasize education more.

Monkeytoe on October 13, 2010 at 4:05 PM

What I mean by saying we emphasize education more is that we do so at the expense of pushing teenagers to become responsible adults. We don’t ask them to understand the finances of their own home. We rarely even ask them to understand how to earn a living. We merely ask that they concentrate solely on an education and in doing so, ask the parents to continue parenting, thus, in your words, “infantalizing” them.

Living longer also contributes to this, because if 30-year-olds were considered over the hill, none would be waiting until then to find a spouse or start a family, nor would any spend a quarter of their lives educating themselves. We do these things now only because we have the luxury of time to do so.

Esthier on October 13, 2010 at 4:25 PM

We do these things now only because we have the luxury of time to do so.

Esthier on October 13, 2010 at 4:25 PM

Or rather, society tolerates us doing so because we have that luxury. If 30-year-olds were considered the elders, they wouldn’t put up with a scholar who lived that long without contributing something useful to society.

Esthier on October 13, 2010 at 4:27 PM

That is exactly my point. It is an appropriate issue for democracy through our elected representatives. It is not a “right” to be found in the constitution. Changing cultural attitudes don’t a new “right” make.

Monkeytoe on October 13, 2010 at 3:29 PM

I’d rather see marriage decided by the states and then have the federal government honor what the states decide.

However the Constitution is more than a product of its times–otherwise Constitutional protections for speech couldn’t be applied in areas like the internet.

dedalus on October 13, 2010 at 4:32 PM

Monkeytoe on October 13, 2010 at 3:58 PM

Great point, especially considering that there is a great push nowadays to create rights nowadays that exist neither in the constitution or reality.

jamarkennedy on October 13, 2010 at 5:01 PM

Wrong question. Since homosexual relationships have never been considered marriages before, why does the government have the right to call them marriages now? Does everything now mean whatever the government decides it means?

tom on October 13, 2010 at 1:18 PM

In that case, why recognize them in any capacity? We never did that before either? Why are civil unions acceptable but not marriage?

I’d say civil unions are an attempted accommodation to gays, so they’re a poor argument based on consistency. That is, civil unions are offered up as a middle ground to a demand for full same-sex marriage.

All compromises are inherently inconsistent. Otherwise, they wouldn’t be compromises.

Plus marriage has already changed drastically in unprecedented ways, so the argument that they’re not allowed in just because they’ve never been allowed in isn’t a logical one either. Just actually come up with a reason why they shouldn’t be let in the institution. Since it’s never been done, theoretically this isn’t a problem.

Esthier on October 13, 2010 at 3:35 PM

What dramatic ways? Was marriage modified to include multiple partners? Has it been expanded to include non-humans? Are 5-year term marriages now in place somewhere?

Sorry, but your whole argument amounts to, “We’ve been able to prevail on you to give up an inch or two, so what right do you have to not give up the whole mile?”

And who exactly has the right to “let people in to the institution?” If the pope reversed course and declared same-sex marriage to be Biblical, do you think Protestant denominations would accept his word? Obviously not.

Do governments have the right to modify social institutions at will? Is that in the Constitution anywhere?

What gives the government the right? “It does well in the polls?” Where are polls an institution of government?

Slavery was wrong even when it was legal. Government makes a poor god.

tom on October 13, 2010 at 5:47 PM

My siblings and their liberal pals have been freaking out about this on Facebook all day. The angry left is fuming.

illustro on October 13, 2010 at 9:45 PM

What’s the problem? Obama said he was going to “fundamentally transform” America. Now, judges can tell us how we should defend our country and are now telling our military who they MUST employ. Our soldiers now have to read Miranda rights to the enemies that are trying to kill them. Terrorists now get to have lawyers appointed to them and have the full access to the U.S. judicial system paid for by YOU, a taxpayer and a citizen of The United States.

Here’s what’s next:

1. A judge will rule that X percent of our military MUST be female.(Remember Title 9 for college sports programs…)

2. A judge WILL rule that X percent of our military MUST be gay/bisexual/trans-gendered.

3. A judge WILL rule that military uniforms MUST be redesigned to accommodate transsexuals.

Wow… this could never end.

shorebird on October 14, 2010 at 2:20 AM

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