Breaking: Obama to abandon DOMA defense

posted at 12:40 pm on February 23, 2011 by Ed Morrissey

Hey, why not?   With the nation focusing on union influence in the public sector and a debate on public spending, what better time to reverse course on gay marriage?  Marc Ambinder reported it for National Journal:

President Obama has decided that the Defense of Marriage Act is unconstitutional and has asked his Justice Department to stop defending it in court, the administration announced today.

“The President believes that DOMA is unconstitutional. They are no longer going to be defending the cases in the 1st and 2nd circuits,” a person briefed on the decision said.

Sooooooo …. when did the Constitutional Scholar in Chief come to this conclusion?   Barack Obama has been in office for two years (having run on the promise to repeal DOMA), and during his entire term, the DoJ defended DOMA’s constitutionality.  Now Obama is apparently saying he was wrong all along.

Maybe he should consider changing his mind on ObamaCare, too.  At least in the case of the PPACA, a couple of federal judges have already reached that conclusion.  Some district courts have reached the same conclusion about DOMA, too, although both the appellate courts and the Supreme Court have thus far declined to agree.

The issue of DOMA is complicated for conservatives.  Rep. Bob Barr introduced DOMA in response to state courts declaring a right to gay marriage in an attempt to block those states from forcing the rest to recognize the marriage through the “full faith and credit” clause of the Constitution.  (Barr later switched to Libertarian and denounced DOMA.)  The act was intended to sequester such rulings to the state level, but originalists have long complained that DOMA was structurally flawed, and that only a constitutional amendment would suffice.  Efforts to move an amendment have mostly come to naught, and many conservatives believe that marriage is an issue best left to the states.

If the DoJ stops defending DOMA, it puts the ball in Congress’ court, or with outside groups, to continue its defense.  I’m not sure whether or how Congress would go about defending the act, and with Democrats in charge of the Senate, it would seem unlikely that the full Congress would authorize it.

Why abandon DOMA now, after two years of defending it?   Perhaps the President has finally realized that his allies are thinning, and he figures that he needs to start pandering to those still on his side.  It could certainly help distract from the budget fight, if Republicans take the bait.

Update: Gabriel Malor e-mailed me this clarification:

You might note in future posts that the AG’s DOMA decision applies only to DOMA sec. 3, which sets a federal definition of marriage. That’s the part that overrode state primacy in family issues like marriage. DOMA sec. 2, which holds that states do not have to give full faith and credit to same-sex marriages from other states, is not at issue in any federal litigation and is not disturbed by the AG’s 530D notice.

A copy of the 530D letter can be found here (PDF)[.]

So noted — and that makes this issue perhaps a little less than advertised.


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We are coming to get you. We need recruits.

SC.Charlie on February 23, 2011 at 7:35 PM

If you’re serious, count me in.

Dark-Star on February 23, 2011 at 8:02 PM

In Italy the age of consent if 14, which I find too low. Also, prostitution is legal Italy with “adults” 18 years or older. However, Prime Minister Berlusconi apparently had sex with a 17 year-old prostitute.

SC.Charlie on February 23, 2011 at 7:49 PM

14 is way too young for a nation like Italy, which isn’t stuck on sex, but we’re not fooling much of anybody when we set our AOC at 18.

Dark-Star on February 23, 2011 at 8:05 PM

14 is way too young for a nation like Italy, which isn’t stuck on sex, but we’re not fooling much of anybody when we set our AOC at 18. – Dark-Star on February 23, 2011

The age of consent is set by each state. Here is a link to the age of consent by state: http://www.webistry.net/jan/consent.html Few states have an age of consent of 18.

SC.Charlie on February 23, 2011 at 8:31 PM

If you’re serious, count me in. – Dark-Star on February 23, 2011 at 8:02 PM

Of course I am serious./sarc ……………… did you notice that R4L left the discussion/argument thread?

SC.Charlie on February 23, 2011 at 8:33 PM

…… did you notice that R4L left the discussion/argument thread?

SC.Charlie on February 23, 2011 at 8:33 PM

glad to see you missed me charlie!

right4life on February 23, 2011 at 8:42 PM

Take your meds, put on the aluminum foil cap and hide in your parents cellar. We are coming to get you. We need recruits.

SC.Charlie on February 23, 2011 at 7:35 PM

obviously you are desperate to take the freedom from those who disagree with you.

right4life on February 23, 2011 at 8:43 PM

glad to see you missed me charlie! – right4life on February 23, 2011 at 8:42 PM

Believe it or not I love you …………….. how about a beer summit.

SC.Charlie on February 23, 2011 at 8:44 PM

What makes ‘discrimination’ by gender any different than by numbers or genetics?

michaelo on February 23, 2011 at 7:40 PM

do you really think charlie or any of the other gay-marriage fascists actually has the courage or intellect to answer that?

right4life on February 23, 2011 at 8:44 PM

how about a beer summit.

SC.Charlie on February 23, 2011 at 8:44 PM

as long as you got the money, I got the time!!

right4life on February 23, 2011 at 8:45 PM

obviously you are desperate to take the freedom from those who disagree with you. – right4life on February 23, 2011 at 8:43 PM

No! Absolutely, no!

SC.Charlie on February 23, 2011 at 8:46 PM

as long as you got the money, I got the time!! – right4life on February 23, 2011 at 8:45 PM

If you can’t pay for your own beer, I would be glad to pick up the tab.

SC.Charlie on February 23, 2011 at 8:48 PM

If you can’t pay for your own beer, I would be glad to pick up the tab.

SC.Charlie on February 23, 2011 at 8:48 PM

I wouldn’t mind sitting down and having a beer with you. wouldn’t even talk about gay marriage.

right4life on February 23, 2011 at 8:49 PM

No! Absolutely, no!

SC.Charlie on February 23, 2011 at 8:46 PM

you personally may not want to..but thats not what the rest of the gay marriage movement wants.

right4life on February 23, 2011 at 8:50 PM

SC.Charlie on February 23, 2011 at 8:31 PM

I know; I was just pointing out that an AOC that is fine for one nation may not be so sensible for another.

Dark-Star on February 23, 2011 at 8:51 PM

@right4life I’d have a beer with you too if you didn’t go on and on about pedophiles being equivalent to gays. Really I think this is the thing that I find most distasteful about your shrill and often nonsensical posts. Trying to say the words pedo and gay enough times to pretend there is a similarity between two adults in a consenting relationship and the abuse of a child by a disturbed adult.

Zekecorlain on February 23, 2011 at 9:22 PM

Also equating the demand for equal access to a cultural institution with the idea that it takes away from you is also a silly idea. After all if I bought a gun it wouldn’t take away from your right not to own a gun. Gays like me are simply tired of people throwing random words together and saying that it makes some sort of valid point. @rebar seems to think that saying that societies have frowned on gays makes the abuse and denigration of gays fair. This idea has no place in the secular concept of equal treatment under the law.

Zekecorlain on February 23, 2011 at 9:27 PM

@rebar seems to think that saying that societies have frowned on gays makes the abuse and denigration of gays fair. This idea has no place in the secular concept of equal treatment under the law.

Zekecorlain on February 23, 2011 at 9:27 PM

What nonsense.

Marriage being between a man and a woman – as it always has been – does not denigrate nor abuse gays one bit.

This naked attempt at forcing society to – not just tolerate because it already tolerates – but to affirm homosexuality, is the real abuse and denigration of a time honored tradition.

Rebar on February 23, 2011 at 9:37 PM

@right4life I’d have a beer with you too if you didn’t go on and on about pedophiles being equivalent to gays. Really I think this is the thing that I find most distasteful about your shrill and often nonsensical posts. Trying to say the words pedo and gay enough times to pretend there is a similarity between two adults in a consenting relationship and the abuse of a child by a disturbed adult.

Zekecorlain on February 23, 2011 at 9:22 PM

you spew talking points but have nothing to back it up, as usual.

why don’t you explain the differences, other than one involves a child…and again, we all know the age of consent laws could be struck down by a judge just as they struck down prop 8.

homosexuality is a sexual orientation…as is pedophilia…if not explain how it is not.

any argument used to advance gay marriage can be used to advance pedophilia, or polygamy…if not explain why not.

you won’t be able to answer these points….all you can do is parrot talking points….cause you don’t have the intellect to do anything else.

right4life on February 23, 2011 at 9:49 PM

This idea has no place in the secular concept of equal treatment under the law.

Zekecorlain on February 23, 2011 at 9:27 PM

laughable. you want special treatment, and you want to take away the rights of those who disagree with you….because the gay marriage movement is inherently fascist.

right4life on February 23, 2011 at 9:51 PM

Obama rules by decree now?

Daemonocracy on February 23, 2011 at 12:44 PM

How else can it be explained? He has decreed a law unconstitutional, effectively making the Supreme Court irrelevent to his decisions. He has decreed that his AG and by default, himself, that he will not be enforcing that law, effectively telling the Legistlators that they are irrelevent to his decisions on laws he will enforce. He has decreed to the American people that he no longer is bound by his oath of office to enforce all laws and defend, or follow, the Constitution.

That is clearly governing by decree.

I guess he has become embodened by the lower courts abuse of power to rule by decree.

Lets hope this is not the beginning of a dictatorship in the making. I find his “Summer of Community Organizing” distrubing in that its purpose is to insure the grassroots of entitlement recievers remain his power base to promote socialism far into the future and his remaining in power.

Franklyn on February 23, 2011 at 9:53 PM

oh and this will actually turn out to be better for DOMA…

On balance, I far prefer that Obama’s Justice Department openly advocates for the outcome desired by Obama’s base, as it is finally doing with DOMA. This way, the court can appoint lawyers who will truly defend the statute with the best legal arguments available.

That is what happened in 1999, when the Clinton administration decided not to defend the statute by which Congress had tried to reverse the Miranda decision. The Supreme Court appointed special counsel to defend the conviction of a bank robber whose confession, though voluntary, had been obtained in the absence of Miranda warnings. (The conviction was reversed; DOJ’s abandonment was a bad legal and policy decision, but at least it was transparent and accountable, and it ensured that the law enforcement position was adequately represented by other lawyers.)

http://www.nationalreview.com/corner/260518/doma-politics-trumps-outcome-andrew-c-mccarthy

why am I not surprised the last case was a democrat?

right4life on February 23, 2011 at 9:59 PM

Abnormal is abnormal. Attraction to the Pre-pubescent is the exact same as attraction to your own sex. It does not make you a special class. You do not have to act on it.

PrezHussein on February 23, 2011 at 10:06 PM

@PrezHussein pedophiles are neither gay nor straight but rather people who abuse children for one of two major reasons. Gays on the whole do not advocate for lowering the age of consent, which is in it’s own right a strange and uneven concept even in our country, and has no biblical or religious constraint or guide. There is nothing similar between sex between two consenting adults and the rape and abuse of under age children. Any more than there is a link between straights and parents who sexually abuse their own children or grandchildren.
Gays are a natural nonthreatening sexual human expression . Since there is only potential positive social and governmental issues involved. Being gay would be abnormal if it didn’t happen on a consistent repeatable statistical percent of all human populations.
Pedophilia doesn’t meet any of those criteria and does not deserve to be part of the same conversation.

Zekecorlain on February 23, 2011 at 11:11 PM

REPROBATE DEFENSE OF IMMORALITY TO INFINITY AND BEYONNNNNNNNNNNNNDDDDDDDDDDDDDDDDDDDDDDDDD!!!!!!!!!!!!!!!!!!!!!

Inanemergencydial on February 23, 2011 at 11:36 PM

Shutup Zeke. You just want economic, judicial, and social consequences to come down on my head for telling the world that homosexual behavior is abnormal.
People lose their jobs for telling a coworker and a customer that homosexual acts are abnormal, and liberals want to enforce this to be the standard.

PrezHussein on February 24, 2011 at 1:23 AM

@Rocks you mean to say that marriages in MA should be treated equally regardless of who is married? Revolutionary…

Zekecorlain on February 23, 2011 at 3:35 PM

Frankly that’s irrelevant. The question here is does the Constitution in any way inhibit the federal government in it’s ability to decide what marriages the federal government recognizes for federal purposes. Clearly it doesn’t. The idea that a state can dictate to the federal government what positions and benefits the federal government must take and give is ludicrous.

Such a position would have wide ranging and unintended consequences. Suppose a law was passed which said the EPA must pay for the cleanup of all contaminated ponds in the country. To effect this the EPA decides to grant each state 10 million for each contaminated pond. Now, lets say a state which was not entitled to such funds, due to no contaminated ponds, decided to legally recognize a swimming pool as pond. The fact that it may be a very good idea to have the EPA cleanup contaminated pools is irrelevant. An entirely new law is needed to effect that result. The EPA isn’t suddenly required by the Constitution to pay the state as Holder seems to suggest.

By Holder’s reasoning the EPA would be bound to pay the state because it’s unconstitutional for the federal government to define what a pond for purposes of distributing these funds.

It’s ludicrous. What’s to stop a state from deciding unilaterally what federal Medicaid benefits the federal government must pay, etc?

Rocks on February 24, 2011 at 1:33 AM

I would define a conservative homosexual as one who could hold up a sign that says A majority of people don’t support my behavior and I will fight for their rights to be able to express that disagreement.

PrezHussein on February 24, 2011 at 1:44 AM

Who cares?

Aquateen Hungerforce on February 24, 2011 at 5:19 AM

Being gayA PEDOPHILE would be abnormal if it didn’t happen on a consistent repeatable statistical percent of all human populations.

Zekecorlain on February 23, 2011 at 11:11 PM

why don’t you explain to us why pedophilia isn’t just another sexual orientation?

Sexual orientation describes a pattern of emotional, romantic, or sexual attraction to men, women, both genders, neither gender, or another gender. According to the American Psychological Association, sexual orientation is enduring[1] and also refers to a person’s sense of “personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them.

right4life on February 24, 2011 at 7:48 AM

Gays on the whole do not advocate for lowering the age of consent,

Zekecorlain on February 23, 2011 at 11:11 PM

really?

Only in the Obama White House can a man with a history of handing out bar guides to teens be promoted to Safe Schools Czar.

Earlier today it was reported that Kevin Jennings’ Gay, Lesbian, and Straight Education Network (GLSEN) organization was distributing gay bar directories to high school students at the 2005 Massachusetts GLSEN conference.

http://gatewaypundit.rightnetwork.com/2009/12/fistgate-iv-obamas-safe-schools-czar-passed-out-gay-bar-guides-to-teens-at-glsen-events/

right4life on February 24, 2011 at 7:51 AM

WILL SOMEBODY PLEASE IP BAN RIGHT4LIFE?

46 of the last 130 posts are from this person. That is ridiculous. And they are always getting into two-person fights in threads, monopolizing the entire conversation with their stupid bickering…MAKE. IT. STOP.

Polynath on February 24, 2011 at 8:18 AM

Polynath on February 24, 2011 at 8:18 AM

let me guess, you must be one of those ‘tolerant open minded’ liberals.

why don’t you just stop reading?

fascist

right4life on February 24, 2011 at 8:57 AM

Obama rules by decree now?

Daemonocracy on February 23, 2011 at 12:44 PM
How else can it be explained? He has decreed a law unconstitutional, effectively making the Supreme Court irrelevent to his decisions. He has decreed that his AG and by default, himself, that he will not be enforcing that law, effectively telling the Legistlators that they are irrelevent to his decisions on laws he will enforce. He has decreed to the American people that he no longer is bound by his oath of office to enforce all laws and defend, or follow, the Constitution.

That is clearly governing by decree.

I guess he has become embodened by the lower courts abuse of power to rule by decree.

Lets hope this is not the beginning of a dictatorship in the making. I find his “Summer of Community Organizing” distrubing in that its purpose is to insure the grassroots of entitlement recievers remain his power base to promote socialism far into the future and his remaining in power.

Franklyn on February 23, 2011 at 9:53 PM

THIS. Focus, people, focus. This is tyranny.

This demands a strong and vocal response that the executive must fulfill its duties and may not pick and choose.

perries on February 24, 2011 at 9:50 AM

Does the justice dept have a legal obligation to defend every section of every law?

ernesto on February 24, 2011 at 10:10 AM

Polynath on February 24, 2011 at 8:18 AM

Seconded.

mmnowakjr85 on February 24, 2011 at 11:19 AM

looks like DOMA isn’t the only thing that DOJ has decided to drop ..

One private attorney involved in the case, who asked not to be named, said the Obama administration apparently concluded “its duty to represent the defendants zealously, which includes the duty to argue any and all defenses, can’t be discharged for reasons of policy and other government interests.”

J_Crater on February 24, 2011 at 11:23 AM

Who cares?

Aquateen Hungerforce on February 24, 2011 at 5:19 AM

A handful of fanatics and professional rabble-rousers.

Most straights would have no beef with gays if their militant element would quit bringing their practices out of the bedroom and into the public square.

Dark-Star on February 24, 2011 at 11:40 AM

The president said yesterday that he has instructed his attorney general not to defend this law in court, where it is currently being challenged.

This sets a very dangerous precedent, in which a president decides which federal laws he will defend and which he will not. He has changed our government from the rule of law to the rule of one man.

The Constitution directs the president to “take Care that the Laws be faithfully executed.” President Obama took an oath to “preserve, protect and defend” that Constitution, but he’s not doing it. He’s subverting the Constitution rather than upholding it. He is in clear violation of his oath of office.

The good news is that Congress can intervene and defend this law in court. This creates the possibility that the law will be defended by those who believe in it and support it, rather than by lawyers in Obama’s Department of Justice, who up to this point have mounted half-hearted attempts at best to uphold this law.

From AFA Newsletter

Akzed on February 24, 2011 at 11:57 AM

This country is literally being fought over by normal people vs sex perverts and their abettors, and tyrants and their abettors.

That’s the long and short of it.

Akzed on February 24, 2011 at 12:00 PM

mmnowakjr85 on February 24, 2011 at 11:19 AM

I must be doing something VERY right!!

right4life on February 24, 2011 at 12:09 PM

This country is literally being fought over by normal people vs sex perverts and their abettors, and tyrants and their abettors.

That’s the long and short of it. – Akzed on February 24, 2011 at 12:00 PM

Glad to see you back to being your “normal” self.

SC.Charlie on February 24, 2011 at 12:22 PM

Glad to see you back to being your “normal” self.
SC.Charlie on February 24, 2011 at 12:22 PM

Akzed the Taliban antigay rights enforcer. Would stoning be sufficient?

SC.Charlie on February 24, 2011 at 12:43 PM

According to http://www.findagrave.com, Clyde Tolson is buried “a dozen lots away” from J. Edgar Hoover, not next to him.

KyMouse on February 24, 2011 at 3:18 PM

KyMouse on February 24, 2011 at 3:18 PM

I can’t resist…SORRY CHARLIE

(rewind the old tuna commercials)

right4life on February 24, 2011 at 3:49 PM

Akzed the Taliban antigay rights enforcer. Would stoning be sufficient? SC.Charlie on February 24, 2011 at 12:43 PM

No, but it would be nice to see some capacity for shame in the likes of you.

When people lose that they’re capable of anything.

Akzed on February 24, 2011 at 3:54 PM

I will NEVER witness to religious Jews – because they’ve got it under control and the Lord will get them where they need to be in the end.
Annoyinglittletwerp. Feb. 23 at 2:56 p.m.

The Jewish prophet Jeremiah foresaw the New Covenant (Jeremiah 31:31-34), and Jesus revealed it to a group of Jewish men at a Seder (Luke 22:20). He warned Jewish people that they must put their faith (obedient trust) in Him in order for their sins to be forgiven (John 3:14-18 and 8:24).

In John 3, He reminds His Jewish listeners about the bronze serpent that God commanded Moses to put up on a pole in the wilderness. Anyone who looked at the serpent in faith would be saved from the deadly poison of the serpents that God had sent to punish them for their disobedience.

He told those Jewish listeners, “He who does not believe in me is condemned already, because he has not believed in the name of the only begotten Son of God” (John 3:18).

In John 8:24, He told them, “If you do not believe that I am He, you will die in your sins.”

Jesus believed that Jews (and gentiles) must put their faith in Him in order to have their sins forgiven.

I believe Jesus. As a Catholic, don’t you?

KyMouse on February 24, 2011 at 4:01 PM

No, but it would be nice to see some capacity for shame in the likes of you.

When people lose that they’re capable of anything. Akzed on February 24, 2011 at 3:54 PM

Shame?……………….You are the one calling people names such as pervert. By the way I am an Episcopalian. I guess that we hold the same Bible but look at things slightly different.

SC.Charlie on February 24, 2011 at 7:36 PM

WILL SOMEBODY PLEASE IP BAN RIGHT4LIFE?

46 of the last 130 posts are from this person. That is ridiculous. And they are always getting into two-person fights in threads, monopolizing the entire conversation with their stupid bickering…MAKE. IT. STOP.

Polynath on February 24, 2011 at 8:18 AM

HotAir doesn’t seem to ban people from the comment threads, even if they make threats of a physical nature.

Certain topics make it predictable who will end up commenting in a rather predicable and disruptive way.

No substantive debate, just the same insults.

Predictable reply to follow shortly…

On the topic at hand, if there is a standing law then I would think that no president or official sworn to uphold the law would be able to decide not to follow it or enforce it.

If the law is unconstitutional, then use the proper channels to change it or have it deemed as such, if you can.

Such a sad distraction at such a chaotic time.

Gene Splicer on February 24, 2011 at 10:25 PM

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