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“As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed,” said Justice Department spokeswoman Tracy Schmaler.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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