Misrule by Decree
posted at 9:28 pm on February 24, 2011 by Dafydd ab Hugh
Yesterday, President Barack H. Obama decreed that the popular surge for restricting marriage to the traditional definition was unconstitutional; further, that the popular Defense of Marriage Act was likewise unconstitutional; and he forbade his racially discriminatory Attorney General, Eric Holder, from defending any anti-DOMA lawsuit that disgruntled gay activists might bring:
“The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Mr. Holder said. “The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”
All I can say is — thank goodness! Three cheers for Obama’s moral resolve and newly grown spine — because that smirking trick of his clears the decks for for legal challenges to be answered by attorneys for House and Senate Republicans, who actually support traditional marriage and oppose the same-sex inversion of marriage.
And before going one nanometer further, I once again strongly support and defend both the repeal of Bill Clinton’s “Don’t Ask, Don’t Tell” policy of forcing gays in the military to remain in the closet, and also the seminal U.S. Supreme Court ruling in Lawrence v. Texas overturning all “anti-sodomy” state and federal laws. In other words, I have not budged on any of my positions:
- I support allowing gays to serve openly in the military.
- I support the fundamental liberty of consenting adults to have any kind of sex they want, so long as it does not cross the line into assault, battery, homicide, or public exhibition.
- But I completely and adamantly oppose instituting same-sex marriage (SSM).
Back to Lucky Lefty, the Obamunist. Note the traditional liberal hubris and megalomania: First, he is not content to leave findings of constitutionality to the courts; Obama has discovered somewhere in Article II of the Constitution a clause that allows him to nullify, by presidential diktat, any federal law he dislikes, even though duly enacted by Congress and signed by the president. Second, he seemingly could not care less what voters in the United States think about the definition of marriage; he has concluded that SSM is cool with him, and the rest of us should simply fall in line.
But it’s not as if he even believes that he can prevent such defenses, thus forcing — as the state of California and its new (and its former) governor are trying — to deny all potential defenders standing, then eighty-six the laws due to lack of defense. Rather, the administration seems almost giddy at the thought of Congress defending traditional marriage, while the president attacks it:
The decision effectively throws the defense of DOMA into the lap of Congress, which can instruct its own attorneys to defend federal laws. Mr. Holder said he had informed members of Congress of the decision so that “members who wish to defend the statute may pursue that option.”
Supporters of traditional marriage immediately called on the Republican-majority House to intervene in the DOMA lawsuits.
“With this decision, the president has thrown down the gauntlet, challenging Congress,” said Family Research Council President Tony Perkins. “It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president’s neglect of duty.”
Many on the left are likewise giddy to the point of vertigo, calling the president’s principled act of unprinciple a tremendous victory for the forces of radicalism and transformation, hastening the eventual Europeanization of the United States.
But not so fast; lefties may be missing the point.
When the Attorney General or the Soliciter General of the United States undertakes to defend a law under constitutional assault, the courts surely consider that defense much more seriously than some outside, third-party, amicus curae brief; I’m sure they privilege those arguments, since it’s the official policy of the United States. Thus, if the administration’s defense is deliberately lame and incomplete, the law stands in grave danger of being overturned… even if a better argument was available but unused.
And evidently, the administration has been doing exactly that, offering an intentionally impaired defense of DOMA while ignoring winning arguments that have prevailed in state cases, hoping that the feds’ feeble efforts will “fail” to uphold DOMA; the crafty Obamunists will then have gotten a major policy change while leaving their own hands clean, thus sidestepping voter vengeance:
While it was sudden, Wednesday’s move did not come out of nowhere. Opponents of same-sex marriage had grown increasingly frustrated with the administration for what they called its underzealous defense of DOMA and its omission of key arguments.
In a brief filed Jan. 13 in defense of DOMA at the 1st U.S. Circuit Court of Appeals, the Justice Department states that “the administration supports repealing DOMA,” but that the department must do its job to defend the law “as long as reasonable arguments can be made in support of their constitutionality.”
Brian Brown, executive director of the National Organization for Marriage, told The Washington Times recently that he suspected the administration of purposely tanking its case.
“They purposely avoid arguments that are winning time and time again in court,” he said. “Even scholars on the other side of this issue have said, ‘What is going on here is wrong.’ Anyone who cares about constitutional government should be very concerned about what’s happening in the DOMA case.”
But Obama, Holder, and the entire administration are now openly at war with traditional marriage while aiding and abetting same-sex marriage, and congressional conservatives have been given the green light to vigorously defend the sanctity and necessity of a legal marriage being between one man and one woman. That very fact means that DOMA has a much greater opportunity to be upheld yet again.
Inadvertently, the tremendous victory is ours, not theirs, a gift from the smug and cocky Left. As usual, “Progressivism” overreaches and draws back a stump, setting itself up for voter blowback as well.
Thank you, mask man!
Cross-posted on Big Lizards…