Sorry if this has already been addressed elsewhere, but I don’t know where to look. I thought that one of the key reasons that the DOJ was defending DOMA was not because Obama is some kind of bigot, but because it is the role of the DOJ to defend laws written and lawfully passed. It is the role of the courts to determine if they are constitutional or not. As such, I was ok with the admin defending DOMA in courts, even though they and I think the bill is a steaming pile of dung.
The last time we debated this, some of you argued this is simply not the case, some of you argued that this is the case only until a court (not necessarily the Supremes) finds it unconstitutional and then they no longer need to defend it, some of you are argued it should go to the Supremes before they stop defending it. Clearly this never made it to the Supremes, so what is the general rule for the DOJ defending laws? And is this not a dangerous precedent- future administrations can just stop defending anything they don’t like in court. I guess this is actually already somewhat the case, because future administrations can already defund things they do not like and make enforcement impractical or impossible, but I am curious where this leaves us and what we should learn from all of this.
*** Update ***
Thanks for all the links. Quite clearly I was conflating two completely different things, which is enforcing the law, and the other issue of whether or not to argue in the courts to defend the law. It seems acceptable to me that an administration has a right to not defend in courts laws it thinks are unconstitutional, but deciding unilaterally they did not have to enforce the law or that they did not have to follow the law is an entirely different matter. I was under the impression that they had to defend the law in court, and since they have decided now that they clearly do not have to do that, I think it justifies in my mind a lot of the anger from LBGT groups earlier on. They were miffed when the Obama admin was defending the law in court, and my response was basically “that’s their job.” If they have now decided it isn’t it seems to me that anger is justified.
Amazing how many ways I have found to be wrong about this issue.
*** Update #2 ***
From the email:
I saw you write this and felt compelled to respond (however, the last few times I’ve tried to post in the comments, it hasn’t worked, so I figured direct email might be better):
I was under the impression that they had to defend the law in court, and since they have decided now that they clearly do not have to do that, I think it justifies in my mind a lot of the anger from LBGT groups earlier on. They were miffed when the Obama admin was defending the law in court, and my response was basically “that’s their job.” If they have now decided it isn’t it seems to me that anger is justified.
I don’t think you have that quite right. Up until now, the Admin has defended DOMA in jurisdictions where DOMA had previously been ruled on and binding precedent had been set. That precedent said DOMA is constitutional should it reach the standard called “rational basis”, which is the lowest bar to hurdle for a law’s constitutionality. By the rational basis standard, Section 3 of DOMA is constitutional, and as such, when defending it the Admin advanced those rational basis arguments.
However, the most recent cases take the challenge to a new arena, the 2nd Circuit, where no such legal precedent exists. Whatever the Admin decided to do with those cases would be precedent-setting, rather than precedent-following. With no guidelines of prior rulings to follow, the Admin made the call that they do not think “rational basis” is the appropriate standard by which to measure DOMA’s constitutionality. Instead, they decided that one of the less permissive standards ought to be applied, and that by such a standard, DOMA Section 3 is unconstitutional, and as such the DOJ declined to defend it in court.
Now, I imagine to most this seems like hair-splitting, but legally speaking, they basically had to thread the needle. In instances where they had precedent, they followed precedent, as the DOJ should. When free of that precedent in a new circuit, they did the right thing.
You can read about rational basis in its Wikipedia entry which includes links to the higher standards of review as well (rational basis plus, intermediate scrutiny, and strict scrutiny).
In short, the Admin’s position is that DOMA Section 3 is and always has been constitutional under the “rational basis” test, and is and always has been unconstitutional under more strict tests; the question is which tests ought to be applied. In the past, binding precedent made that decision for them. That’s not the case in the 2nd Circuit, hence the change.
I hope that makes sense.
Thanks for taking the time to read
So they had to defend it where there was precedent, but now they are at a level where they do not, so they are not. Right?