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?
anthrosciguy
It’s like a local DA’s office (espe. where they run for office). They can choose, within some limits, what they are going to emphasise in prosecutions. So a new DA may decide the office is going to basically ignore small amounts of pot, for instance, while another may decide to aggressively pursue even small drug offenses. All prosecutorial offices do this to one extent or another. How many GOP office holders were prosecuted for their offenses compared to Democratic officeholders during the GW BUsh administration, for example.
Nate W.
Some background reading:
Walter Dellinger’s memo is a great place to start.
The U.S. Code clearly contemplates the executive declining to enforce or to defend laws on the grounds that the executive believes are unconstitutional.
Davis X. Machina
Go to Balkinization, or LGM.
Nate W beat me to Dellinger.
Lavocat
Glenzilla addresses this very issue in a recent update to his post on DOJ & DOMA.
Balkinization also addresses some of these issues on a recent post.
Basically, it’s a lot more complicated than it appears.
DOJ has a great deal of discretion in this matter (which is NOT necessarily a good thing!) but, at the same time, Obama, as first among equals under the Constitution would have an obligation to support and enforce all laws that are not found to be unconstitutional.
MAJeff
Some thoughts from LGM:
http://www.lawyersgunsmoneyblog.com/2011/02/on-the-alleged-tyranny-of-obamas-refusal-to-defend-the-constitutionality-of-doma
Part of this is due to some jurisdictional issues. Section 3 was being challenged in the Second Circuit. In that circuit, there was no standard of review established for sexual orientation cases, so DoJ would have had to make an argument as to what level of review they thought sexual orientation cases should be subject to. Their reasoning was that it should be subject to heightened scrutiny (not strict as several people have said–DoJ was saying sexual orientation should be treated more like gender than like race). At that level, they did not believe they could make an argument that there is a compelling state interest to exclude same-sex couples from federal marriage definitions. Based on that, they are refusing to defend the law in that circuit and withdrawing from defending it in other circuits.
The law does not remain without its advocates. Members of Congress can still step in and defend it, and some of the crazy fuckers like Alliance Defense Fund and Falwell’s law school are trying to get some anti-gay congresscritters to step in and defend it.
It is not unprecedented for DoJ to refuse to defend laws, as the fine folks at LGM point out.
Remfin
I’m pretty sure it leaves us where we have always been; the language in the press release is pretty much exactly the ethical guidelines lawyers are already supposed to be bound to. If it sets a “precedent” it’s because the media will misinform the public as to what’s going on and claim it’s some “radical” thing when it is not.
Jane2
When law is really policy in disguise that has no benefit or impact on other government policy, finances, etc, and isultimately unconstitutional, governments will decline to pursue it and repeal sometime in the dim future. In my provincial jurisdiction, they bury it in an omnnibus bill which contains a number of laws that need wording changes, repeal or general tidying up to bring up to date with the current legal environment.
Nate W.
And (stated in a different post because FYWP won’t allow three links in a comment) pages 5 and 6 of the letter to Congress explain that the DOJ will take the necessary steps to see that Congress can litigate this issue fully if they want to.
beergoggles
Disclosures:
#1. I am not in con law.
#2. I am in the camp that thinks the DOJ can chose to not defend cases beyond trial as a matter of policy because congress can always assert standing to defend it.
What Obama has done is thread the needle in this one. Circuits can assert issue preclusion but in the 2nd circuit, there is no precedent for categorizing whether sexual orientation gets strict, intermediate, rational+ or rational basis review. Even the SCOTUS has sidestepped this issue in their opinions, as such the O-DOJ can assert their interpretation. They can then use this interpretation to withdraw from cases in circuits that do have such precedents.
It’s basically a roundabout way of rationalizing and doing something they could have done in the first place.
However, the most important part is categorizing sexual orientation as a suspect class, thus raising it above rational or rational+ scrutiny. Basically the executive is saying there better be a damn good reason for excluding this group of people from something and the courts are going to have to accommodate that view if there isn’t strong precedent for it.
So when NOM said that Obama just said that gay is the new black, they were sorta right – government can’t just go around making up rational sounding arguments for discriminating against gays.
Bill Murray
But it also has to do with the standards (rational basis, strict scrutiny, etc.) that have been decided by the relevant circuit court. see this thread at Lawyers, Guns and Money http://www.lawyersgunsmoneyblog.com/2011/02/on-the-alleged-tyranny-of-obamas-refusal-to-defend-the-constitutionality-of-doma#comments
AdamK
If someone says something Obama does is radical and unprecedented, you can be pretty sure it isn’t.
Dave C
Newt says this is an outrageous, unconstitutional power-grab. When has that guy ever been wrong?
lol
Why do I feel like I’m one of the few people to have actually read Holder’s memo?
The short version being argued:
1. The DOJ is obliged to defend any laws that *reasonable arguments* can be made for.
2. The DOJ doesn’t believe reasonable arguments can be made for DOMA.
3. However, relevant precedents have been set in the 3rd circuit (and probably others) so it’s impossible to argue to judges that there are no reasonable arguments because higher courts, or possibly the actual judge they’re in front of, have already ruled that there are.
4. DOJ is left to defend DOMA.
5. But behold! A case in the 2nd circuit has been filed!
6. There are no binding precedents in the 2nd circuit. That’s why GLAAD filed a case there.
7. No binding precedents = no reasonable arguments.
8. Peace out motherfuckers. Do what you will Boehner.
JGabriel
John Cole @ Top:
Three points:
1) Aren’t there thousands of blue laws on the books that no one enforces or prosecutes any more?
2) There’s always more people breaking more laws than there are time and people to prosecute them. Some prosecutorial discretion seems mandatory.
3) If I understand this correctly, Obama and Holder are not saying that they will refuse to defend DOMA. Instead, they are saying that, since there’s no precedent regarding Section 3 of DOMA in the Second Circuit, they will no longer defend it’s constitutionality there. That way, they can force a decision that conflicts with other circuits and expedite the issue to the SC.
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legion
There’s also an economic aspect to this. If the DOJ actually thinks this will really get dumped by the Supremes, then fighting it all the way to that level is a waste of resources…
Swellsman
As I understand it, the DOJ isn’t declining to enforce the law. Rather, they are just saying that — after having brought someone into court to enforce the law — if that defendant than argues “this is unconstitutional” the DOJ is going to look at the judge and say “I got nothing.”
Now, I may be wrong about this, but I did spend some time in the federal courts and this isn’t the dumbest thing I’ve ever heard of. And it does sound very much like Obama’s middle-of-the-road approach to everything: “Sure, we’ll enforce the law. But if anyone puts up a fight, we’ll roll over having technically discharged our duty.”
By the way . . . please don’t take any of the above wrong. I agree w/Obama’s decision and I agree that DOMA is an affront to the Equal Protection Clause. I’m just trying to describe what I understand the current decision to mean.
John W.
I was going to comment, but the first few comments nail it and give great links.
It’s definitely not a simple issue, but the problem is that you have to go to law school to understand how it’s nuanced. I don’t know that there is an easy way to explain this to the masses.
Baud
@lol: What I find truly amazing about this whole thing is that Holder really did end his legal analysis with “Peace out motherfuckers.”
Nick L
The crucial bit is that Speaker Boehner can appeal the constitutionality of the law if he chooses, giving him limited power to override Obama.
The traditional separation of powers is preserved, with flexibility: since the fundamental duty of the executive branch is to defend the Constitution, it does have some limited discretion to refuse the defense of an unconstitutional law, and possibly even refuse its enforcement. However, the courts can override the executive branch on this, and legislatures can appeal the decisions of the executive branch to a court.
Is it a gray area? Yes. Is it rife with the potential for abuse? Indeed. Maybe the lesson here is that the president is a uniquely powerful person for a democracy, one who has substantial say over the constitutionality of a law by means of enforcement. However, with US checks and balances, the president can rarely get away with abandoning a law entirely since Congress can sue and both branches are subservient to the judicial branch.
It’s a good system when the courts are working properly. Too bad that’s not the case here.
MAJeff
@lol:
I don’t believe GLAD actually challenged this. They work in New England and this was filed in New York. It’s the ACLU that’s taking this one.
GLAD is suing in the 1st Circuit (the two cases out of MA),and DoJ has withdrawn from defending those suits.
MAJeff
@JGabriel:
Nope, they’re withdrawing in other cases as well. They’re leaving defense of Section 3 up to Congress or someone else.
kth
Obviously the wingnut shrieks are without merit as always. But the complaints of the people who argued that the Obama admin was never obliged to go to bat for DOMA are more substantial, and though addressed head-on, are not fully allayed by the stuff linked to upthread (though do read it all, it’s quite worthwhile).
JGabriel
MAJeff:
Didn’t know that. Either it wasn’t in the reports I read, or I misread them. Links, please?
.
JGabriel
BTW: Getting EXTREMELY annoyed with not being able to edit posts.
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Baud
DOJ is kind of in an awkward position in these types of cases because it acting as both a lawyer and a client when defending the constitutionality of acts of Congress. In its lawyer role, its job is to defend federal statutes, but as the client, it knows that some federal statutes violate the constitution. Most of the time, the lawyer role wins out, but occasionally the client side prevails.
Murc
I’m deeply, deeply unsure about the whole ‘Congress can assert that it has standing and defend the law themselves’ line of reasoning.
The executive branch kind of, sort of, exists to do that sort of thing FOR Congress, doesn’t it? To -execute- its laws? That’s where the word comes from, right? If Congress has to defend its own laws before the judiciary when it has created and funded an entire Department of Justice to do that FOR it, then why has it even bothered creating executive agencies?
I will freely admit that precedent is definitly on the ‘this is something the DoJ does all the time’ side of the argument. A million other people have already linked to LGM, where Scott Lemieux does an excellent job of establishing that, while uncommon, this is not an unheard of position for the DOJ to take, something that nearly every President has done.
But it really, REALLY troubles me. The fact that something has been done doesn’t necessarily make it a good idea. My position is and has always been that the executive branch exists primarily to carry out the will of Congress. It can’t appoint judges without legislative approval. It can’t appoint its own -department heads- without legislative approval. It can’t write regulations without the Congress delegating that power to a regulatory agency it creates (a regulatory agency whose head Congress may chose to reject). Hell, a sufficient supermajority of Congressmen can even say to a President ‘fuck you and your veto pen, here’s a law, its going on the books, enforce it. You took an oath.’
So I really don’t like that the DOJ can, apparently, simply roll over on an issue if it decides it wants. DOMA is egregiously unconstitutional in a couple of ways, and it should be struck down or repealed. But that’s a decision for the courts, and when people come to the courts to get a law struck down, a law duly passed by Congress, it is, in my opinion, the job of the executive to stand up and defend it. The fact that they CAN do otherwise doesn’t mean they SHOULD.
That’s where I come from on this.
Bob Loblaw
Gee, Cole, it just might be…if half the last Presidents going back since the Great Depression hadn’t done the exact same thing. There is a difference between nullifying the law and not defending it in court. The federal government is not just an uninterested, grease-the-wheels-of-justice mediator for the other two branches. They’re allowed to have opinions on things. They’re allowed to practice advocacy government and attempt to leverage judicial opinion.
See General Stuck, this is what I was talking about. People just cannot ever cop to being wrong. Certainly not without trying to turn it back on the people who were right.
The administration has all sorts of tactical and political reasons for doing the things they do and not do (and in the case of gay rights, rather successfully planned out and chosen I believe), but they have no constitutional or professional responsibility to bust their ass defending a law they believe to be a violation of basic human rights and dignity. They are allowed to play the referee, as it were. It’s not a power that is used lightly or frequently (and it hasn’t, not even by those dastardly Republicans), but it was not pie-in-the-sky fantasy bullshit perpetrated by purist axe-grinders looking to unfairly malign this President. Not in the main. Though the unfair maligning is also real, and a different problem for a different post.
MAJeff
@JGabriel:
http://metroweekly.com/poliglot/2011/02/the-fallout-doj-drops-first-ci.html
Parallel 5ths (Jewish Steel)
@Baud: Now the question becomes, will the 2nd circuit issue a writ of Peace Out?
And will the Motherfuckers of the lower circuits be enjoined to Peace Out likewise?
Veritas78
It is as it has always been: the Attorney General does what he’s told to do.
This current pussy, Eric Holder, got told to do this. Otherwise, expect not one single thing from the DoJ. No banksters are going to jail, no one will ever be prosecuted for torture — instead, they’ll make hay going after Wikileaks and Julian Assange.
Holder is the limpest dick to ever occupy that office. His wife must be seriously frustrated.
Baud
@Bob Loblaw:
That’s really the key. DOJ not defending a law has no legal effect. It just means someone else (Boehner?) will have to file a brief in court defending DOMA. It’s still up to the courts to decide whether it is constitutional.
Nate W.
@JGabriel: Hereis the letter from the DOJ to the First Circuit regarding “ceasing their defense” in Gill, Hara, and Commonwealth. I read this to mean that they won’t be withdrawing their appeal or withdrawing their brief, but won’t be filing any further defense of the law from here on out.
zuzu (not that one, the other one)
@JGabriel: That’s how I’m reading it, too. They’re letting the US Attorneys in other circuits know that the administration is taking this position in the Second Circuit, but there’s nothing in Holder’s press release that indicates that defense of DOMA will be withdrawn as a matter of course in any circuit where there’s already precedent.
Now, the big question is whether the withdrawal in Pedersen and Windsor means that the issue of standard of review never gets reached in the Second Circuit, so that you will still have varying standards. The DOJ has also told the First Circuit — which includes Massachusetts, where a federal district judge declared DOMA unconstitutional last summer — that it will not appeal or defend DOMA cases there.
But. What does that mean going forward? Will there be no eventual circuit split because the D-Mass case won’t reach the First Circuit if the DOJ withdraws? Will the DOJ eventually stop defending the law anywhere and/or argue for a new standard?
Mary G
Somehow I see this as a shiny object being waved to distract the children from trying to light the stove. Or, as someone said last night in comments “Look, squirrel!”
Martin
Not dangerous at all. And the DOJ invited Congress to defend it in their place, so it’s not even as though the executive branch is trying to somehow surreptitiously undermine the role of the legislative.
But this seems like a perfectly reasonable outcome. Congress passes DOMA which says that the federal government can’t recognize same sex marriages. 15 years later, Congress repeals DADT which means that the military now needs to figure out how to confer wounded and death benefits to gay soldiers, some of whom are legally married. The military says ‘Fuck, this DOMA section 3 is a fucking disaster because it requires that we treat these two groups differently. Congress has handed us two incompatible pieces of legislation.’ The DOJ looks at the problem and says ‘Yep, those are incompatible – if we are to treat gay soldiers the same as straight soldiers, we can’t leave this whole marriage problem on the side. Since the repeal of DADT was knowingly made with DOMA in place, we feel DADT should supersede that provision of DOMA. We were always a bit uncertain about this, but now we have a legitimate legal conflict.’ And so the DOJ decides that Section 3 is incompatible with more recent legislation and so when a case comes up that the DOJ has no ammunition to use in the defense of Section 3, they step up and say ‘we got nothing, we can’t defend this’.
Even politically, defending Section 3 could be viewed as the DOJ refusing to defend DADT, so they can’t fucking win this one.
zuzu (not that one, the other one)
@MAJeff: There are two cases, one filed in NY and one in CT. I think GLAD is handling the CT case and the ACLU the NY case.
eemom
You mean……there ISN’T a simple answer to this? We gotta ask a law professor?
There’s something about Constitutional law that every Joe Schmuck Blogger doesn’t know?
WTF?? I thought all you had to do was take a poll of which way Justice Kennedy’s gonna vote when it gets to “the Supremes.”
Sly
@Swellsman:
Basically, yes. But it’s not so much enforcement as it is defending the statute. DOMA is basically enforced by the relevant state or Federal agencies who are petitioned by married same-sex couples for state or Federal benefits.
One of the two cases in the Second Circuit relate to a lesbian widow who saw her wife’s estate fully taxed by the Federal government even though there’s a provision in estate tax law allowing for widows/widowers to inherit the estate of their deceased spouse without being taxed. So she’s suing the Federal government. The other case involves a number of gay couples in Connecticut who were denied benefits given to straight couples under the Family and Medical Leave Act, so they’re suing the state agency of CT (Office of Personnel Management).
The DOJ is essentially agreeing with their discrimination claims but are not explicitly saying as such. They’re saying that the law requires a level of constitutional scrutiny under which these cases would very clearly win, so they’re not going to bother defending the law.
lol
@Mary G:
So in other words, Obama is just throwing a bone to the gays by steadily enacting every agenda item they’ve lobbied for?
Bob Loblaw
@AdamK:
Well played sir. Well played.
zuzu (not that one, the other one)
@Nate W.: That’s two circuits out of 11 (well, 12, really, but the Federal Circuit only does intellectual property). The Second Circuit had no precedent. The First Circuit has a district-level case on appeal in which the district court found the law unconstitutional.
So we have two circuits in which the DOJ is withdrawing. What about the other nine? Those other nine are the hard ones, with the precedent establishing lower levels of scrutiny.
Nate W.
@Murc: I don’t disagree with you about being troubled by the general principle–the AG exists to defend the laws of the United States. However, the executive should not have to waste taxpayer resources mounting a defense of a law that there are no reasonable arguments in favor of.
In that sort of a circumstance, I think the policy set forth in the letter to Congress is the right one–continue to enforce, invite Congress to defend the law, and continue to be a party to the case so that there is the proper jurisdiction to ensure that the issue is decided on its merits. I would be seriously troubled if the DOJ tried to pull out like California did in the Prop 8 case, but fortunately, that’s not what is happening here.
Nate W.
@zuzu (not that one, the other one): Are there pending cases in the other
nineten (remember DC) circuits? If you tell me the names, I would be happy to look for the letters…JGabriel
@MAJeff: Thanks, Jeff. I don’t think that proves I’m wrong though. It links back to Holder’s original memo to Congress, which states:
That indicates that the DOJ intends to argue for heightened scrutiny only in those circuits where there is no previous precedent for merely rational basis review.
The way I worded my analysis implied that would apply only to the Second Circuit, but I should have said “and other circuits with no precedent for rational basis over heightened scrutiny.”
As far as I can tell, though, the Obama/Holder DOJ won’t be arguing for heightened scrutiny in circuits where thee precedent for rational basis review already exists.
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Sly
@Sly:
Minor correction: Pederson et. al. are suing the Federal Office of Personnel Management.
JGabriel
@MAJeff: Here’s a link to: the Holder memos.
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Cacti
@eemom:
And the people with the most vociferous opinions about it are likely to be those with no legal background at all.
Like Newt Gingrich.
JGabriel
@zuzu (not that one, the other one):
Obviously, I don’t know. Not a lawyer, etc. That said, it sure looks to me like Obama & Holder are pushing for a circuit conflict that will force the SC to re-analyze the law and overturn it due to higher scrutiny.
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rikyrah
I think POTUS and the DOJ kicked it back to the House of Representatives. let them deal with it. I have no qualms with that.
MAJeff
@zuzu (not that one, the other one):
MA, not CT.
Nate W.
@zuzu (not that one, the other one): I dug a little more and I think there is one other pending case, Golinski v. OPM in the Northern District of California (Ninth Circuit). I can’t see that the letter has been filed in this case (it may have been, I don’t have my Pacer account information at home), but here is an Order from the judge in the case dated Feb. 23 ordering the OPM to give the Court an update on how they intend to proceed on the case. Their response is due Monday.
MAJeff
@JGabriel:
It links to Holder’s original letter and notes that DoJ has sent a different letter to the courts in 1st District:
zuzu (not that one, the other one)
@Nate W.: Dammit, I always forget DC.
Yes, there are lots of pending cases. A quick check of Westlaw turns up 128 pleadings and motions and 77 decisions. Golinski is a pending case in N.D. Cal, if you want a name.
zuzu (not that one, the other one)
@MAJeff: No, CT. Pedersen v. OPM is filed in Connecticut, which is in both New England and the Second Circuit. GLAD is representing plaintiffs there.
Sly
@JGabriel:
Agreed. The DOJ is basically saying, “Man… if only there was some body of judges who could help us sort out this disagreement….” There they’ll be arguing what level of scrutiny the government should be put under, and making that argument as the lawyer for the government.
MAJeff
@zuzu (not that one, the other one):
There’s also MA case. Gill.
gnomedad
Noticing that you are wrong can come in handy. One of the benefits of joining the reality-based community.
JGabriel
@Nate W.: I read this to mean that they won’t be withdrawing their appeal or withdrawing their brief, but won’t be filing any further defense of the law from here on out.
From the linked Holder memo:
Thanks. Got it.
MAJeff: Yes, that means you were right: the DOJ will be informing all of the circuits courts that they don’t believe DOMA’a Section 3 can be held constitutional under a heightened scrutiny review. My mistake.
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zuzu (not that one, the other one)
@JGabriel: Well, except that they’re not pushing the First and Second Circuit cases up to the circuit level, so there won’t be a circuit split unless someone else takes the issue up on appeal.
@Nate W.: The fact that the court in Golinski is asking OPM what its position is means that Holder hasn’t, in fact, withdrawn in Ninth Circuit cases. Holder affirmatively told the First and Second Circuits the DOJ was withdrawing its defense in pending cases, but apparently hasn’t told the Ninth Circuit that.
zuzu (not that one, the other one)
@MAJeff: I think we’re talking past each other. The original letter only covered Pedersen and Windsor, in the Second Circuit. The second letter covers Gill and another case in the First Circuit. GLAD is involved in the three New England cases.
JGabriel
ARRGH! Forgot to blockquote NateW,above.
Please to be fixing the edit function, PLEASE?
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joe from Lowell
@AdamK:
Awesome.
Nate W.
@zuzu (not that one, the other one): They aren’t withdrawing in any of the cases. They are ceasing their defense and taking the position that the correct standard is heightened scrutiny, then letting the courts do what they will.
(PS: The First Circuit cases are currently at the appeals level.)
ajr22
John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing….I’m sure Newt knew that, but it was okay then because that law was helping minorities.
JGabriel
zuzu (not that one, the other one):
Right, but isn’t that what the administration wants?
Maybe I’m ignorant here (very possible), but if the administration appeals a DOMA decision, then they must defend it. But if someone else — Congress, for instance — successfully appeals to the SC, then the Solicitor General can step in with an amicus brief stating the government’s argument for heightened scrutiny.
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smiley
This is pretty deep in the thread but… Think Progress (via Benen):
What a surprise.
Svensker
Thanks for asking about this, John. I didn’t understand it, either, and Greenwald’s column on it just confused me more.
I feel edumacated. (But still unable to explain it to my wingnut relatives and they wouldn’t in a million years read a “liberal” blog to find out, so “Obama is STILL destroying the constitution! ZoMG!”)
maus
@rikyrah:
Oh god yes, a bit sequined shiny thing for them to bat around and keep them distracted.
zuzu (not that one, the other one)
@Nate W.: Right. I’m not using “withdraw” as precisely as I should. In any event, Holder’s statement and his letter mention only four cases. What’s going on with the other pending cases is still up in the air.
Though it’s kind of ironic that the administration is telling courts it won’t defend DOMA at the same time it’s getting ready to continue defending DADT even though that’s been repealed.
pablo
Any questions? Newtie is the go to guy for the DOMA subject.
joe from Lowell
John,
Think of the DOJ’s refusal to defend a law in court as comparable to the filibuster. Its a procedure that wasn’t envisioned by the framers of the Constitution, but which doesn’t violate it in any way. Similarly, it’s something that should be rare – even rarer than a filibuster – and reserved for only the most important issues, to avoid the egregious abuses. It’s something that shouldn’t be entered into lightly, without good cause, and using that procedural block consistently (like the Republican senators did in the last Congress) is a massive abuse of the process.
In this case, the DOJ has found a legitimate hook on which to hang its hat – the absence of a ruling on the standard of review in the circuit in which a case has been filed. Based on that situation – which didn’t exist before the case was filed in one of the 2nd Circuit’s district courts – they’ve decided that this is one of the special cases that justifies violating the general principle.
Without this “hook,” the argument for violating the general rule was either “The administration should refuse to defend any law it doesn’t like,” (basically, the legal equivalent of how the Republican Senate behaved) or “This is a special case which should be treated in a special manner, because my issue is so much more important than everyone else’s issues, which the administration should continue to defend,” which is pretty fucking arrogant.
Without the loophole provided by the filing in the 2nd circuit, the administration really would have been setting a precedent, because they would have been refusing to defend a case just because the administration had decided, on its own, that it didn’t like the law.
The notion that the issue of precedent setting is irrelevant, because the Republicans would obviously just choose not to defend laws regardless, is belied by the record of the Bush administration, which, despite its utter contempt for Congress, defended laws they didn’t like as a regular part of doing business, as a professional duty. There really was an issue of precedent-setting (because the duty to defend laws except in the most extraordinary situations is found neither in federal law nor in the Constitution, but is traditional), so they waited for some extraordinary circumstances that gave them the opportunity to refuse to defend this law, without creating as much of a precedent.
Jenn
Cole, re. anger with the Obama administration for not doing this before, my (albeit fuzzy) understanding is that they are doing this now because the cases in districts without precedent where the courts asserted this was unconstitutional occurred late in 2010 (mid-November is coming to mind, but maybe it was October?). Presumably in the 3 or so months since these decisions, the DOJ has been getting its ducks in a row, so they can make this decision and announcement now.
Caveat: IANAL — anyone want to chime in with more and better details? My internet connection is stinking at the moment, so my attempts at googling the answers have been decidedly unfun. If my fuzzy understanding of the above is wrong, I’d like to know it! Thanks.
Angry Black Lady
@lol: nice.
joe from Lowell
@zuzu (not that one, the other one):
Actually, they’re defending DADT precisely because it’s being repealed. They’ve dropped the argument that the DADT law is constitutional, acknowledging that it is unconstitutional, and are now arguing that it is constitutional to allow DADT to be repealed in the manner Congress and the Pentagon have directed, rather than via court order, is constitutional. It’s a procedural argument about how to eliminate a law and a set of regulations, not whether that law and those regulations are constitutional.
Jenn
@Jenn:
ETA (or would have been, had I been able to do more than type in the edit box): Read the whole thread, Jenn, read the whole thread. I didn’t see the date of decision aspect mentioned, though.
Nate W.
@zuzu (not that one, the other one):
Umm… no, it isn’t. The government moved for a stay in the proceedings in that case that would give them a chance to implement repeal as per the repeal certification bill passed in the last Congress. The court denied that stay. If they withdrew their appeal, the stay on the district court’s order would be lifted and they would not be able to proceed as per the repeal plan.
Angry Black Lady
in my view, he is playing a game of chicken with boehner. let boehner defend to the masses why people married in vermont are not married in pennsylvania, are married in massachusetts, then not married in illinois.
it’s a big shiny object to distract the So Be It Congress from finding a job for every man, woman, child and pet.
i think DADT posed a different challenge because it was a policy affecting the military and therefore national security. obama wasn’t about to let virginia phillips, some liberal 9th Cir. judge, make military policy for the nation. hence is statement in the 2010 SOTU that he was going to work with congress and the military to end it.
i understand most people’s default position is “obama is a pussy,” but i don’t think that’s the case here. the only people who are going to be up in arms about DOMA are the culture warriors. with DADT, independent voters, i think, were able to hang their hat on “well the military and congress agree.” i’d be surprised if independent voters give a crap about DOMA.
/all of the above pulled directly out of my ass.
Corner Stone
That’s what you do, Cole. Bounce off every fucking wall in the place until you finally figure out how bad you’ve been fucking that chicken.
Angry Black Lady
@Veritas78: what an intelligent, well-thought out and not-at-all sexist comment.
joe from Lowell
The doctrine they’re putting forward isn’t “that it thinks are unconstitutional,” but “that it thinks cannot be defended in court as being constitutional.”
As you know, lawyers put forth arguments they don’t actually find compelling all the time. In a situation in which there are two arguable interpretations of a piece of evidence or the application of some language in a law, lawyers frequently argue the side that is best for their client, rather than the one they, personally, would find the most compelling if they looked at the matter objectively.
The administration isn’t saying “We consider the arguments that DOMA Section 3 fails a heightened scrutiny standard more convincing than the arguments that it meets that standard.” They’re saying, “There are no legitimate arguments, that a lawyer could make in good faith, that DOMA Section 3 meets a heightened scrutiny standard.”
It’s a higher bar than just an opinion about a law’s constitutionality.
FlipYrWhig
@joe from Lowell: IANAL, but some of the earlier comments suggest that part of the answer to John’s comment in the update to the OP — basically, “If they could do this now, why didn’t they do it before?” — involves the passage of the bill repealing DADT.
Do the lawyers on the thread agree with that?
Corner Stone
Not like it’s going to make any headway, but can we please stop quoting wingers’ hypocritical positions from 20+ years ago?
Nobody fucking cares.
Mark S.
I like how our military has contingency plans for invading Belgium but apparently never considered the possibility that DADT might be repealed. They asked to study the issue for a year and nearly fucked up getting the damn thing repealed. Now they are proceeding “deliberately.” Just don’t discharge openly gay people, you fucking idiots.
Corner Stone
@Mark S.:
God, I can not wait for the frickin’ waffles.
They can keep their damn pommes frites with mayo though.
joe from Lowell
@FlipYrWhig: I’ll admit, I don’t understand the implication of Holder’s reference to DADT repeal in his statement about not defending DOMA as a legal matter.
FlipYrWhig
@Mark S.: Don’t they also have to figure out how to handle things like reinstating discharged people and a whole bunch of bureaucratic stuff like how to count lost service time, probably things having to do with lost benefits, that sort of thing?
Mark S.
@Corner Stone:
I wouldn’t get too excited. It’s not like we got a bunch of cheap gas from invading Iraq.
The waffle cartels will just get no bid contracts and it’ll be business as usual.
Baud
@FlipYrWhig: I think DADT repeals strengthens the case that courts should apply heightened scrutiny in evaluating DOMA. Otherwise, I don’t really see a connection between the two other than a (valid) political one, which is now that the nation has made a strong statement about discrimination against gays (through DADT repeal), it is wholly appropriate for the Executive Branch to be more aggressive in other areas.
joe from Lowell
@Mark S.:
Oh, la-di-dah! It’s so easy!
You sound like someone saying “What part of ‘shall not be infringed’ don’t you understand?” “Whether or not I buy insurance isn’t interstate commerce, silly!” or “A redevelopment plan isn’t public use, duh!”
When the best minds the country, people who’ve devoted their entire careers to a certain field, are sharply divided on a question, or acknowledge that it’s not a simple matter, it’s probably not because they just aren’t as smart as you. There are probably arguments and considerations that you, Mr. Internet Guy, don’t fully appreciate.
gwangung
@FlipYrWhig: Military matters (i.e., killing people and breaking things) are easy. Political matters and managing people? That’s hard.
JPL
@FlipYrWhig: Comments #70 and #71 address this issue.
John, was jumping to conclusions that might not be right in his update.
Baud
@FlipYrWhig: I would also guess they may be updating their fraternization and harassment policies and training folks on how to deal with these issues. Has anyone been discharged since the repeal was signed?
Dennis SGMM
I just read the entire thread and I’m grateful to everyone who informed me about this. Now, my grasp of the law pretty much ends at “Don’t do fifty in a School Zone,” so a lot of the commentary went right over my head. My question is this: can this tactic also be used (Like signing statements)by a future administration to avoid defending a law that we do like? For example, what if the Bachmann-Palin administration decides that the mandates in HCA are unconstitutional and chooses not to defend them?
JPL
Whoops…I cited the wrong comments…should be 70 and 71
Corner Stone
@Mark S.:
Hmmm, if Saddam had been allowed to price Iraq’s oil in the EU, as he threatened, instead of the dollar I think you’d be singing a different tune amigo.
We’ve had relatively cheap gas for the last decade because the dollar is still the oil reserve currency. That shits about to go buh-bye.
As for me, I just want my cheap waffles.
Sly
The DOJ has to defend a law where there is precedent for the law to be defended. They can’t walk up to the circuit judges and say “we have no idea how this can be defended” when that same circuit has given them a way to defend it. They’ll be laughed out of court.
What all this boils down to is whether homosexuals are either a “suspect” or “quasi-suspect” class; that they are a distinct minority group defined by some immutable characteristic that have faced a history of discrimination by the government and have had limited political power to defend themselves. In such cases where statutes are crafted against suspect or quasi-suspect classes, the courts are obligated to use a higher level of scrutiny when reviewing the constitutionality of statutes in relation to Section 1 of the 14th amendment. Any argument advanced by the government in supporting the constitutionality of the statute in question must follow whatever standard the court determines.
Some circuits have said that gays are not a suspect or quasi-suspect class. Other circuits, and the Supreme Court, haven’t made a determination one way or the other. The ninth circuit may make a determination when the appeal of Perry v. Schwarzenegger is heard (the case that overturned Prop. 8), but hasn’t yet.
In jurisdictions where no precedent exists, the DOJ is saying that they gays are at least a quasi-suspect class and as such they can find no way to defend the constitutionality of statutes that explicitly discriminate against them. The guidelines they are using to make that determination are the same guidelines used by the Supreme Court, and are in the memos and letters issued by the DOJ.
In other words, they’re leaving it up to the courts to make this determination but are giving the courts advice on how to proceed. And courts have generally followed their advice in such matters, which is one of the big reasons why all but a few groups are officially considered suspect or quasi-suspect classes.
joe from Lowell
@Baud:
Nobody has been discharges since well before the repeal law was signed. Nobody has been discharged since Secretary Gates issued directions requiring the Service Secretaries to sign off on discharges – signatures which, for some mysterious reason, haven’t been forthcoming.
Baud
@Dennis SGMM: HCA mandates are a little different because they are enforced through taxes and/or fines (I believe). So if an Administration That Shall Not Be Named thinks they are unconstitutional, it would have to do more than simply not defend the law in court, it would have to not enforce the law at all. That goes a bit further than what DOJ did here.
Mark S.
@joe from Lowell:
God, you’re an annoying dipshit. If they are the best minds in the country, shouldn’t they have considered that DADT might be repealed one day? And what are they divided on? Whether gays should serve? Undoubtedly, but that’s not the issue anymore. How to implement the policy? There are some technical questions (that they should have already studied) but there’s no reason for Gates to say “service members who alter their personal conduct during this period may face adverse consequences.”
Villago Delenda Est
Well, it’s not like Newt Gingrich is an expert on anything but trying to get more money out of marks for him to “run for President”.
joe from Lowell
BTW, does anybody remember hearing even the slightest complaint about this from the wingnuts? I sure don’t.
Thus demonstrating that it wasn’t a military concern about the need to get gay people out of the armed forces that motivated the opposition to repeal, but simply the political benefit they thought they could get from blocking repeal.
JPL
Thanks to all the folks who informed me about the ruling. I knew that it was a narrow opinion but didn’t understand all the nuances. The links were great as well as info posted by Joe and the dates of the suits posted by Jenn.
It will be interesting to see what Boehner does. I’m sure he’ll receive his advice by his cronies that he plays golf with.
joe from Lowell
@Mark S.:
My, you are an emotional little thing, aren’t you? Deep breaths, hon. Deep breaths.
Sigh. ONCE AGAIN, it’s probably not best to assume that, gosh darnit, those dummies just don’t know as much I do.
They aren’t “studying” the technical issues. They’re actually implementing and addressing them, and that takes time.
Let me guess – your next argument will be a loud, pretentious assertion that you don’t know what technical issues could possibly take so long to address.
Which would then prove my point. You. Don’t. Know. Unlike a wise man, however, you don’t even know enough to know that you don’t know.
joe from Lowell
@Mark S.:
As an example of the things you don’t know: the reason Gates would say that is that, until the new DOD regulations are promulgated, the military is still under orders to carry out discharge proceedings for people who openly acknowledge being gay.
Which is a pretty damn good reason to tell people to keep a lid on it until they new regulations are promulgated.
Davis X. Machina
@Corner Stone: Learning is like that, sometimes. It beats students who can’t find the wall, or who run at the wall, and miss.
JGabriel
@Dennis SGMM:
I think that’s specifically why Obama and Holder chose to wait for a court with no precedents on the matter to advance this argument. More generally, an administration needs fairly specific and compelling arguments, including a belief that the SC will agree with them, before asserting the unconstitutionality of a law or its provisions as the reason for not defending it in court.
For instance, as ajr22 and smiley observed above, the situation you describe has kinda-sorta already occurred. John Roberts convinced the Bush I administration that they shouldn’t defend an affirmative action law he interpreted as unconstitutional — it made it to the SC anyway, where they disagreed with him. But the points are that it has happened before and that, even under a GOP administration, Roberts had to convince other arbiters of his interpretation (ultimately failing at the highest court).
.
Corner Stone
@Davis X. Machina: He’s an exceptionally slow learner.
Nerull
Cole: I think you’re not reading some of the posts closely enough. It’s not that they just decided, all of a sudden, not to defend it. It’s that they’ve been waiting for a court case were they COULD not defend it. This tactic hinges on the argument that heightened scrutiny must be applied to this law. Other courts have legal precedent saying it doesn’t, so they can’t argue that way. This one has none. If the court agrees with them that the higher standard must be applied, that creates a conflict which will force the issue to the supreme court.
Doing it this way makes it more likely to be stuck down, and would also set legal precedent for other/future laws that would protect gays.
Sly
@Mark S.:
It’s a bit more than that. As a point of illustration, there were personnel in the chain of command who refused to desegregate their units, delaying complete implementation of EO 9981 for years after Truman signed it. Even the Secretary of the Army was reluctant to do it and had to be forced into retirement.
The United States Armed Forces is a huge bureaucracy, and it doesn’t turn on a dime even when the person in charge of the whole thing says so. All Gates did was remind personnel of this fact, and told them to be careful. The bottom line is that everyone who wanted to see DADT repealed should thank their lucky stars that such an honorable person is the Secretary of Defense
Corner Stone
The movie Eagle Eye is a little cheesy, but it scares me to death that it’s probably a generation or two behind where our capabilities really are.
General Stuck
This happens so rarely, it’s hard to pick up.
Nerull
Bah, can’t edit, so I’ll add it here.
The court can compel them to defend the law, regardless of personal feelings. This is not them saying they don’t want to defend the law, but they can not defend the law. It isn’t possible. This only works with heightened scrutiny.
Obama is a former constitutional law professor. He knows how to get things done in a way that will last. It would be great if we could get everything we want right now, and a pony. But things don’t always work that way, and that’s not always the best way to get it done.
Corner Stone
@Nerull:
This makes me guffaw every time I read it. As if the person writing it has no idea what they’re writing.
Like a Haitian voodoo priest has turned them into a zombie of some sort.
Nerull
Yes, we should all get our legal opinions from internet trolls. A law professor couldn’t possibly have any greater understanding of legal issues. How silly.
The trolls here are really slipping.
General Stuck
@Nerull:
Corner Stone was born face down in a bucket of shit.
gwangung
@Nerull: It’s my observation that a lot of people grasps the politics quite well–but the law, much less so. (And this is apparently an area where it’s exceedingly technical, even for legal matters).
Sly
As for the relationship between the arguments Holder is making vis-a-vis DADT, they have to do with strict and intermediate scrutiny guidelines. There are two relevant sections, the first of which is this:
This has to do with a guideline establishing whether a group of people should be considered a suspect and thus entitled to the strict scrutiny standard: That they are defined by an immutable and/or highly visible characteristic. The DADT repeal established, at least by statute, that they do, hence it gets added to their arsenal of arguments.
It is the same reason why statutes discriminating against religious groups rise to the level of strict scrutiny; while religion can be changed by the adherent, demanding that they change (or hide) for the sole purpose of avoiding discriminatory laws is in itself unconstitutional.
The second reference is this:
The “bearing on ability to contribute to society” bit is a qualification of heightened scrutiny. In Frontiero, the court determined that:
In other words, the Court determined in Frontiero that the government cannot discriminate against women simply because they’re women. Holder is basically applying the same qualification to homosexuals.
Corner Stone
@Nerull: Where did I speak to the interpretation of the law? Or any eventual outcome?
In fact, I didn’t give an opinion at all.
Try harder.
General Stuck
@Corner Stone:
Sure you did. It was the same opinion you give always here, in so many words, that Obama doesn’t measure up even as a constitutional law professor. Why is that Corner Stone? Maybe some day you will tell us.
edit – and nice touch with the Voodoo quip
Arclite
Well, it doesn’t help when major news orgs can’t get the story right either.
eemom
@Nerull:
you will get nowhere with that logic. Not on this blog. Trust me on this.
Sly
@Nerull:
I don’t think that’s the case here. The DOJ is saying that, absent any binding precedent or directive from the Court, they will assume that heightened scrutiny applies to statutes curtailing the rights of homosexuals. Then they give their reasons for using that standard. Then they give the reasons why, under that standard, this particular statute is unconstitutional.
The Second Circuit can still say “We want you to defend the statute and use rational basis to do so,” but I don’t think that’s likely. Absent precedent, courts generally respect the opinions of the other branches of government. So unless Boehner makes a convincing argument to the Second Circuit why rational basis should apply (and through those memos Holder basically cut the legs out from under him), the court will in all probability respect the stance of the Executive. The only time I think Congress has any sway is when the issue is legislative intent.
kdaug
@eemom:
Fixed. Snarly jackals don’t do logic.
Jeremiah Meyer-O'Day
@joe from Lowell: Right. The important thing to realize about that the Federal Rules of Civil Procedure, Rule 11 proscribes lawyers from advancing arguments that no rational creature could make with a straight face. Holder’s memo is simply notifying the courts in the various cases involved that he believes that given heightened scrutiny, no rational creature could defend Section 3 of DOMA without rolling on the floor laughing its ass off.
LT
That was always the bullshit line the defenders of Obama used: He has to do it – it’s law!
Exposed.
Arclite
Off to the rally in Honolulu.
Maude
@Sly:
It’s hard to imagine Boehner making a convincing arguement about anything.
joe from Lowell
gwangung
@LT: Yeah….prime evidence of my statement.
Yutsano
@gwangung: Yeah, this thread is too legal insider baseball for me. I’ll just trust that the right thing is happening here and move on with my existence.
LT
And thanks, John, for dealing with this so honestly.
General Stuck
@LT:
I believe that was in reference to using an executive order to circumvent DADT. The reason for not dropping the court case was because they were working a second track to have it repealed, which happened.
joe from Lowell
@LT: Oh, fer Chrissakes.
It’s like we’ve spent 120 comments discussing the ideal shape for the nose cone of the space shuttle, and you show up and condescending tell us that gravity causes objects that are heavier than air to sink.
And then wrote EXPOSED.
Mark S.
@Sly:
Unpossible
Bureaucracies never drag their feet when forced to do something they don’t want to do. They always act in total good faith.
Corner Stone
@joe from Lowell: It scares me to death if you really have anything to do with the education system.
Please, FSM, please don’t let this know it all wannabe prick have contact with poor innocent chillens.
Sly
@joe from Lowell:
Nuance is just another way The Man® keeps us down, bro!
LT
@gwangung: Explain. I think I understand this, and I don’t see where my comment is wrong.
General Stuck
@Sly:
Which leads us to, firebagging is just another word for nothin’ left to lose.
Mark S.
This isn’t a pressing issue, but I’m at a loss to understand the 11 dimensional chess going on here. A President McCain would have issued a posthumous pardon.
A President McCain would have also started a couple wars by now as well.
LT
@joe from Lowell: Well, okay. I even thought about that when I saw there were already 120+ comments and I wrote that comment. You’re right. But I read the first paragraph and remembered the condescension of the Obama defenders of those days and got pissed off.
You’re right. It was shallow and callow.
LT
@General Stuck:
It was used for DOMA.
General Stuck
@LT:
I know I certainly (don’t recall having done so) didn’t say that DOMA had to be defended in court by the administration because “it was the law”, and I don’t remember that being used as a reason to do so. I only remember “it’s the law” line being used by folks, Obama supporters, in the case of using an EO to overturn DADT. If you have evidence on this being pervasive among us obot personnel on BJ, then you should bring it.
lol
@LT:
If you’re too busy to read Holder’s memo, which addresses your exact “point”, there’s little reason to bother explaining it to you again.
LT
@General Stuck: I didn’t say it was done here, although I think it was, and John seems to imply that.
joe from Lowell
@Mark S.:
You and that straw man are clearly having an intimate moment.
Don’t let me interrupt.
joe from Lowell
@Corner Stone:
Why do you imagine that I, or anyone else reading this, would care what you feel?
JPL
@LT: John must have skipped town or doesn’t think the other posts are worthy. He added the update after the first few comments.
Joe at 71 and Jenn at 72 have a theory as to the timing of his announcement.
OT…What happened to the edit function? Is it just me?
General Stuck
@LT:
Oh, of course, why would I think you were referring to Obama supporters on BJ when you post a comment on BJ stating EXPOSED. Cole implied he didn’t know what to think about it, and that implied he didn’t know what to think about it, and was asking for directions. stop digging
Sly
@LT:
It was used for DOMA when there were cases in circuits that had rational basis precedents.
Rational basis pretty much means that the government has carte blanche to invent any bullshit reason they want to take away the rights of a particular group. So, true to form, the DOJ used bullshit reasons because (a) they had to and (b) all of the reasons to discriminate against homosexuals are bullshit, and there are lots of them.
Now they don’t have to abide by (a), so they’ve purposely discarded (b). Read the memos and you’ll be reading the arguments the lawyers opposed to DOMA will use when it reaches the Supreme Court. It’s the same arguments Judge Walker used when he ruled Prop. 8 unconstitutional.
Funny how the administration acts this way consistently when they don’t have to negotiate with institutions subordinated to conservatives, isn’t it? What’s the word for that tendency, again?
Oh, yeah.
It’s called “Liberal.”
Exposed.
joe from Lowell
@LT: First, thank you
Second:
I don’t recall seeing anyone argue that there is a federal law requiring administrations to defend laws when they’re challenged. I always saw the argument made in terms of process and probity. Sort of like the denunciations of the Republicans’ treatment of the filibuster in the last Congress.
Then again, this is the internet, so you can probably find someone arguing anything.
joe from Lowell
@JPL:
I should point out, I’m just repeating what Holder explained in his memo and his statement to Congress.
@General Stuck: Come on, he’s backed off.
LT
@General Stuck: Because people on BJ only ever comment on this and only this blog, right?
joe from Lowell
@Sly:
Even worse than that, rational basis review means that the lawyers defending the law, can make up reasons that the government might have possibly invented to justify the passage of a law, even if the government didn’t actually argue those reasons when they passed it.
Even more, rational basis review means that the judges hearing a case can make up reasons that the government might have used to justify the passage of the law, even if there’s no evidence that the government considered those reasons, and even if the government’s lawyers never even suggested those reasons as a defense.
joe from Lowell
Going back through this thread, the asymmetry between the Obots and the Firebaggers is striking.
The Obots put forward any number of comments explaining why the filing of a case in the 2nd circuit gave the administration a loophole, so that this action doesn’t falsify the earlier “duty to defend” argument.
I can’t find a single argument from any of the Firebaggers that even attempts to explain why the Obots’ explanation is wrong.
Sly
Let’s all be nice and hug: The SPLC has declared Atlas Jugs a hate group.
Barb (formerly Gex)
Gays got a lot of hippy punches for having the view you are just coming around to in the update to this post. Which is why I am not optimistic for gay rights. If it doesn’t affect you, you just don’t need to look at it too closely. So long as there are enough homophobes who respond positively to anti-gay stuff, there will always be enough uninvested straight people to go along with it. And others who are “on our side” but think we are “shrill” and “now is not the time”.
Same as it ever was.
Just Some Fuckhead
How you can go almost five hours without a new and interesting thread with 43 front page writers is a mystery of the universe.
joe from Lowell
@Barb (formerly Gex): If you look at the trend in gay rights over the past 20 years, or even the past 2, and you’re not optimistic, it’s because you’ve decided not to be.
Angry Black Lady
@joe from Lowell: “obama is a pussy” is their argument.
LT
If I’m being moderated, fine (although I honestly don’t see why – but it ain’t my blog), but I’m not getting a message that I am.
celticdragonchick
You have had quite a few harsh things to say to me on the subject of the DOMA briefs. Nice to see you admit to your mistakes.
Sly
@Barb (formerly Gex):
Funny. All this stuff convinced me that if something affects you, you also tend not to look at it closely. There have been gays and gay rights supporters attacking Obama as a sell-out since day one, and the evidence presented for this is… his continual pushing for the expansion of gay rights? Oh, but everything is just a bone thrown to the queers to keep them happy and obedient. If the Democrats take back control of Congress before his tenure is up and he manages to get ENDA through, he’ll still be ranked by a minority of gay rights activists as the worst enemy gay people have ever had.
Hippies are punched because they are dumb. No one here ever said “just wait.” At least not to my knowledge. It was mostly “just be smart.”
LT
What the fucking fuck. My moderate-question comment goes through, but all my others are not. I’m lost.
One more time:
Ugh. That comment got through?
Okay, once more:
That was 2009. I’m guessing someone will explain now what nuance I’m missing. (That’s only partly sarcastic.)
General Stuck
@joe from Lowell:
They are opposition. Just like at any winger blog. They might use different tactics and viewpoints, but the ultimate purpose is to bring down Obama. And often using the odious cover of, don’t punch us, cause we are dems too. And it is never so obvious as when Obama pulls a progressive rabbit out of his hat. Can’t have that, so they spam such threads with steamy piles of bullshit.
Fuck em, I have been and will continue to try and not incite battles on this front, but when they show up taking potshots at Obots, then that is inoperative. Funny this thread, the pot shots missed the barn but was a direct hit on their own feets.
LT
@joe from Lowell:
I don’t know who said that it was law, but as I just showed in the comment, the Obama DoJ itself said in 2009 it had to defend DOMA.
General Stuck
@joe from Lowell:
Don’t think so. More like attacking in a different direction.
General Stuck
@LT:
So that is why you came here snark a blazing at Obots for defending Obama on this. Let us know when the goal post is once again moved.
LT
@General Stuck: The underlying theme emerging here is that you’re a dick.
That aside – what? Those are your imaginary goal posts. Nobody said it was law – but people defending the Obama administration said they had to do it anyway. You simply cannot say that that is not true. The fucking DoJ even said it was true.
And “obot” is your word, not mine.
General Stuck
@LT:
Then you should have said this from the beginning, instead of googling about it later to cover your ass. You came to take a shot at the BJ obama supporters, and missed big time, and can’t admit it, so we get this squirming shit. And where is the link to the DOJ statement. No link, no credit. If you want to hide behind a technicality that you were referring to “obama defenders” elsewhere, but not here, then so be it. But that is all it is and it makes me smile a little. Now go back to FDL and report on us “dick” obots.
Allan
Hi, John. I just wanted to chime in and say thanks for a couple of things.
First, thanks for dropping that ban-hammer as you did the other day. The signal-to-noise ratio has clearly improved since then, most notably in EDK’s posts.
Second, I thought you did a really good job in this post by opening it up acknowledging your lack of clarity. As a result, especially at the start of the thread, you got a large number of useful and informative responses.
Third, thanks for updating once you’d seen some of that input so that late arrivers who weren’t just looking to start a flame war would know not to come jumping in without reading earlier comments before opining.
I’ve had my share of issues with how you’ve handled issues regarding LGBT people in the past, and said so. So I thought I should say this.
Of course, you can’t control how assholish people choose to be in the comments. But how you frame the issue in your initial post has a great deal of impact on the direction the thread takes.
Good job.
General Stuck
Oh that theme done emerged a long time ago, but not always, not even most of the time, but for special occasions.
LT
@General Stuck: Woo hoo, you are a funny little dancer.
I don’t comment at FDL. Ever. Well I may a few time have years ago, but not since. And I don’t send them emails, in case you’re going to come back with that. (You sure seem the type.)
And what the fuck are you talking about? People were arguing that the Obama had to defend DOMA. Period. End of story. You trying to find some distinction because I didn’t say that they said it was law it just fucking stupid.
And since you apparently didn’t read Cole’s post:
That kind of class is beyond you, I guess.
General Stuck
@LT:
Here is your first comment
@LT:
You have not named one Obama defender, only a non linked quote from the DOJ two years ago. It doesn’t exist until you verify it, so we can see what else might have been said.
So, even if you include a single member of the Obama administration as an “obama defender” as to your claimed meaning for saying that, then that is one, and you need to amend your comment to singular “defender”.
But of course, we know that was not what you intended to do in the first place. It was to take a shot at obama defenders on this blog, now wasn’t it? Be honest now.
My first two comments to you were very benign and respectful, but instead of correcting the record then and dropping it, you continue with this nonsense. Give it up dude.
LT
Okay, my mistake. I did say that in the first comment. I had completely forgotten that, and I had no idea what you were talking about with “law.” I completely take it back, and apologize for the confusion it brought. That is not what I meant.
It is to me a distinction without a difference. If they were arguing (and John admits that he was – how can you keep arguing this after that is beyond me) that they had to defend it – what’s the difference?
And I didn’t link the quote because the three times I did the comment didn’t publish. I tried to.
And I already admitted it was an angry response at Obama defenders. And? I think it’s deserved. And so did Cole.
And I’ve corrected the record – and my larger argument stands.
Aconite
Maybe the way his administration defended DOMA by arguing same-sex marriage was equivalent to bestiality, pedophilia, and incest? This could be argued with a straight face?
Or maybe the part about how SSM would cost too much, so we must continue to deny a class of citizens their civil right to marriage?
Or maybe, I don’t know, how an officer who physically and emotionally abused the soldiers under his command (both straight and gay) was retired with full benefits under this administration, while military personnel discharged under DADT are still being forced to pay back tens or hundreds of thousands of dollars paid for their education and training?
Possibly it had something to do with Obama’s backtracking on his support for SSM? He was for it in 1996, but somehow that evaporated and “I personally believe marriage is between a man and a woman” and “God is in the mix” gave the right wingers the ability to say, “My position on gay marriage is the same as the President’s.”
If you can explain to me how it was necessary to compare my relationship with my partner to f*cking a dog in order to secure my right to marry her one day, I swear to FSM I will take back every angry thing I’ve said about the man on this issue. Deal?
It’s worth noticing that this change came after a sustained, organized effort to refuse to donate any more gay dollars to an administration that took our money and called us dog sodomizers. The gay lobby was important in getting Obama elected and will matter very much in his reelection. I do not for one moment believe that has nothing to do with this turnaround.
LT
That link still won’t go. (It’s to Queerty.) Here’s another with similar.
General Stuck
@Aconite:
Here here. Tally Ho. I’m certain that is why.
Stellllllllllllllllllllllllllllllla!
General Stuck
@LT:
Far as I’m concerned, case closed, no harm, no foul.
eemom
@Allan:
what is a nice man like you doing on a blog like this?
Bob Loblaw
@General Stuck:
I have never seen anybody say they appreciate having you around* on this blog, General Stuck, so until you can produce verification that someone has, I can only conclude that everybody hates you.
/* I actually have seen people say this, which I figured I should make clear so the snark didn’t whoosh right past your feeble mind. Which would be unhelpful. The point is that demanding people google previous blog comments (which are largely unindexed and unsearchable) is a douchey and illegitimate move.
Revisionist history is revisionist. Of course there were arguments over every dimension of DOMA litigation on this blog. Even all the way up to John Cole himself, which he has outright admitted in this thread. Because he has something you don’t Stuck: intellectual decency and honesty. I wish the dead end haters who can’t find it within themselves to support and congratulate President Obama on any and all matters of civil rights, given his pretty solid record domestically thus far, would start exhibiting some intellectual decency and honesty too, but they seem just as lost as you.
There’s no such thing as being wrong for the right reasons. There’s just wrong for the wrong reasons. If you had the right reasoning behind you, definitionally, you wouldn’t be wrong.
The administration chose to maintain a discriminatory posture for several years on the federal definition of marriage and associated rights endowed thereof because they thought it was the necessary move for the time, in view of a longer process. They were not ever obligated, they chose. And now they’ve made a different choice. Their ultimate goal never changed, but they thought some sacrifices had to be made I guess to achieve that goal. President Obama chooses to espouse a rationale of religious bigotry in public to justify an aversion to the nationwide acceptance of marriage equality. One day, in the not so distant future, I know he will make a different choice. It doesn’t make him right, right now, but it doesn’t make him wrong forever. Progress.
PhoenixRising
Yeah, I was gonna pitch in but Aconite has had the last word. (Though how you can hear yourself think above all the wanking about who said what in 2009, I don’t know.)
It is obvious that there is a political element to this, but the timing was in fact dictated by the legal developments. The specific language of Holder’s letter was a masterpiece, and it was not clear to even the most involved counsel at Gay Inc. whose con call I attended on Thursday afternoon what the practical meaning would be. So it’s no embarrassment that anyone would have questions at this point.
Cole, nicely done. Show of class.
Cacti
Under Obama:
1. Hate crimes legislation passed
2. DADT repealed
3. DOJ pushing for heightened judicial scrutiny of DOMA
And for their part, gay voters have:
1. Increased their vote for Republicans by 1/3 in 2010
dm9871
I think update #2 articulates the rationale for DOJ’s position.
The other question is a little different: what is the executive obligated to do when someone sues the US government claiming a law is unconstitutional. I would say generally speaking the DOJ should defend the law’s constitutionality, but I don’t agree that DOJ is obligated to do so. It is the executive’s responsibility to enforce the laws (as interpreted by the judiciary), but it is not the executive’s obligation to defend those laws in court.
Comrade Mary
@Allan: I’m not trying to stir shit (moi?), but I’m just curious. Can someone please point me to the banhammering referred to here? Thanks!
Allan
@Comrade Mary: I don’t want to search for the exact thread, but Cole warned Cudlips to knock off the EDK-stalking, she ignored his request with another eleventy-seven off-topic attacks, and was banhammered.
General Stuck
@Bob Loblaw:
You post links to factual assertions and quotes loblaw. Those are and have always been the rules on this blog. It is not up to the recipient of allegations to find the source.
The rest of your comment appears to be you finally being eaten whole by the giant asshole you carry around all day.
I cleaned your clock with the bullshit you levied on this topic the other day, and you didn’t bother to respond then, instead giving this illiterate gumbo of more bullshit now.
I’m beginning to think you don’t like me, or have fallen helplessly in love, where there exists a neverending thin line betwixt the two.
grumpy realist
Holder’s memo makes perfect sense if you remember your Constitutional law class. And the fact that we live in a Common Law country. Which means that things like what level of scrutiny get used for what class has been evolving over time. We have a bunch of decisions in different courts; the inconsistency between the decisions means it gets kicked up to the SCOTUS at which point they’ll make a decision as to whether sexual orientation deserves intermediate scrutiny or only rational scrutiny. At which point it will be fixed for the entire US and will stay that way until later the SCOTUS decides to change it (fat chance.)
Yeah, it’s Constitutional law insider baseball, but that’s how our legal system works. Be patient.
Allan
@Aconite: You forgot several grievances. Have Donnie McClurkin and Rick Warren completely slipped your mind? And how the administration rushed to clarify that Sonia Sotomayor is not a lesbian? Try to be more exhaustive (and exhausting) in the future.
Gay Obama Cultist* Allan
* Badge issued by Glenn Greenwald
JGabriel
Pretty much. The courts in each circuit are bound by the precedents of that circuit, due to stare decisis. Even if the DOJ wanted to pursue a heightened scrutiny standard in those earlier courts, the judges would have and should have ruled against it based on the earlier precedents.
That’s what Obama and Holder mean when they say they couldn’t raise that argument earlier — it would have resulted in a ruling against them.
.
General Stuck
@eemom:
seconded
Arclite
@Arclite: Well, the rally was a bit of a bust. Only about 200 people or so, and the unions didn’t even know about it, so they didn’t attend. That, and most of the signs were for Pro Choice, not Pro Worker, which is fine, but I kind of wish it had had more focus.
Comrade Mary
@Allan: Ah. And thus I was enlightened. Thanks!
Allan
@Aconite: Oh, and PS:
In related news, the rooster believes it is responsible for making the sun rise.
General Stuck
That is what I get from the legal eagle analysis here and elsewhere. Which totally blows a hole in dipshit genius Bob Loblow’s deep thinking that Obama was choosing to defend bigotry.
I just don’t remember many recent threads where we went that deeply into DOMA, but mostly focused on DADT and why Obama was defending that while working towards repeal.and DOMA sometimes was discussed in tandem with that. Now that the legal technicalities are ripe, and there is no hope of repeal in the near future, seems like the thing to do for a
PROGRESSIVE ADMINISTRATION
eemom
re the banhammer, I saw where John warned her, but not the actual falling of Teh Hammer — was it dramatic?
Bob Loblaw
@General Stuck:
There’s a choice quote from Barney Frank involving table legs that applies.
Because he was. That was the entire point of Holder’s letter. The standard review basis for the law justifies bigotry. The administration felt compelled to uphold it for procedural reasons. They never for a second thought the act of doing so wasn’t unconstitutional and bigoted. Procedurally correct does not preclude the possibility of being morally wrong. It’s a matter of evaluating which is the more important set of precepts for the long haul. For people who believe that the arc of history bends towards justice, this short term sacrifice is often considered worth it.
joe from Lowell
Yes, except for one minor distinction: it’s not about being at a new “level,” but about being a different “forum.”
They aren’t now arguing in a higher court, but in a different court on the same level. Horizontal change, not vertical.
General Stuck
@Bob Loblaw:
Read Cole’s update moron. It say’s in so many words that Loblaw is full of shit because Obama had to defend DOMA until now. What did Barney Frank’s table legs have to say about that. Christ, you are a tedious wanker.
General Stuck
@Bob Loblaw:
What weasel bullshit. So now you are divining Obama’s motives that because they couldn’t drop the case as a legal matter, until now , that Obama “never for a second thought” they weren’t defending bigotry.
That’s Jaws you just jumped
LT
Regarding he third update, that would make sense – but it’s not what the Obama admin was saying back then. Again:
And Stuck, that’s not just one random person. That’s a DoJ spokesperson – speaking specifically for the administration.
joe from Lowell
@Sly:
Barack Obama has absolutely no respect for his gay “base,” and his stated positions in favor of their issues are a fraud; but when he then succeeds in accomplishing one of those goals, it’s only because of his fear of their awesome protest power. Which he has no respect for.
@LT:
Is this a joke? It’s been explained several dozen times on this thread alone.
@General Stuck:
Meanwhile, throwing punches at other Democrats, from Obama on down to BJ commenters, is all they ever do.
@LT:
A closer reading of that comment would demonstrate to you that they didn’t say they had to do so under the law. I have to be faithful to my wife. I have to feed my daughter healthy food. I have to be calm and kind to kids at school no matter how they’re behaving – because it’s the right thing to do. I don’t have any legal obligation, but I have to anyway.
General Stuck
@LT:
But at that time that statement was true. They couldn’t know a loophole as such would present itself in the future, where they didn’t have to anymore
joe from Lowell
@Aconite:
Never happened. This is one of the great myths in internet history.
I had to slap Bob Loblaw around about this last night. They never argued that same-sex marriage was equivalent to anything. They argued that states have long had the authority to regulate marriage as they saw fit, and cited cases upholding that principle.
Mike Kay (Chief of Staff)
From my buddy and BFF, Glenn Greenwald.
My dear friend Glenn went on MSNBC and hailed our President for his DOMA decision.
General Stuck
@Mike Kay (Chief of Staff):
It’s hard for me to fathom that GG would state this truth. I might change to being his BFF, also too, if this becomes a pattern.
sparky
interesting idea: make up a theory then demand someone else show that theory to be wrong so as to be right. interesting idea, but it’s been done before, see, e.g., GOP shills & commentators 2001-08 and the notion of shifting the burden of evidence. there’s no obligation to take apart something that is fanciful in the first place. unless of course a disingenuous poster who, after making up a theory, then claims victory on the ground that no one has proven that such is not the case. must be nice to always be right, especially by demanding that those who disagree with you disprove your theory. well, it DID work pretty well for the GOP so why not use it now?
oh and i see what you did there–you, who along with Stuck can be counted upon to support every Obama decision good bad or indifferent. cute the way you try to pretend you are not flying the flag of Obotism.
now, then, a few points–
1. the Executive and the DOJ have no power to determine the standard of review. none, as in not any. the notion that sexual preference rulings should employ the same standard of review as sex characteristics is an argument, nothing more.* for it to have any legal authority it would have to be accepted by a court. but of course now the administration is not going to be in any court cases. see how clever that is?–can’t change the law if there is no controversy to rule on. i do have to hand it to the administration–a brilliant way to preserve the status quo while looking like you are effecting change. bravo!
2. by defaulting in district court, the Obama administration avoids the possibility of a circuit split, and thus, may actually avoid having the SCt. rule on the issue at all. given the current DOJ’s crappy standard on civil rights i would not be surprised if this was indeed the plan. it aligns with what happened with DADT, which people here seem to insist changed something. FYI, the DADT statute states that NOTHING will be changed until the conditions in the statute are met. so, yes, DADT could still be enforced five years from now. kicking the can down the road and bailing out banksters seem to be the things this administration is good at, so i think the most plausible rationale is that in both cases Obama just put off the decision for at least another three years.
3. but since not everyone grasps that, the Ds can hope that gays turn the $ spigot back on.
assessment: a brilliant, but deeply, deeply cynical political ploy.
*FWIW, i think the SCt will decide to employ a “rational plus” standard of review rather than the gender standard. there is just no way that the Catholics on the Court will vote for anything higher.
aisce
@General Stuck:
you’re a seriously stupid person. you make this site unpleasant to read.
General Stuck
Someday, you fuckers will BELIEVE
General Stuck
@aisce:
You will just have to grin and bear it.
And did you link back to what I was responding too. I thought not.
LT
And has this always been true of such a decision? That it depended on whether a certain court had ruled on it? (And why – I honestly do not understand this – is the 2nd being seen as entirely independent? They can ccite the decisions ofother courts, can’t they?)
It doesn’t sound like a requirement, though I’m not sure people are arguing that right now.
joe from Lowell
@LT: When you find a quote in which anyone in the administration identifies this duty as being a legal duty, required by law, you let us know.
Because last time I checked, there were considerations beyond adhering to the bare-minimum of not violating the law that political leaders, and everyone else for that matter, are supposed to follow.
Parallel 5ths (Jewish Steel)
@Comrade Mary: I was curious too!
@eemom: And now I’m curious about that. Off to search EDK’s posts!
LT
@General Stuck: My last link says this is simply not true.
General Stuck
@aisce:
There is a pie filter you might want to check out. I think half the blog has already pied me, one more won’t exactly create imbalance in the blogosphere.
LT
@joe from Lowell: I’m not saying it’s law – although I made the mistake of saying that in my first comment. I’ve taken that back and apoligized.
As I also said, people saying that they had to defend DOMA were basicallly saying the same thing – so what’s the difference?
Bob Loblaw
@General Stuck:
I simply don’t understand the way you think. If the administration didn’t think there was anything wrong with the way the statute was being reviewed, they wouldn’t have acted to create a new precedent.
GLBT activists wanted the administration to pursue an activist course. The administration declined. The viewed upholding precedent to be a more important short term goal than immediately righting a policy of discrimination. That is their right and (mostly, but not entirely) responsibility. That was the essence of the conflict. The administration was right from a practical standpoint, but never not willingly discriminatory. So it goes. I’m not bashing them, you fool.
General Stuck
@LT:
I’m not a lawyer, and I take it you aren’t as well. I am going by what actual lawyers in the here and now are saying about this complex issue. Maybe one will answer you’re concern and link.
But the quote by GG is absolutely true, that for Obama to now at the start of a tough reelection campaign, to take this action offers him little pol benefit and lots of risk. That is the case no matter what the legal circumstance. It seems if GG is appreciating this as a genuine moral move, then others might want to as well.
General Stuck
@Bob Loblaw:
I understand how you think, in nothing but pure mendacious terms. And now adding mind reading of motives in the face of clear practical requirement is simply stunning. Fool
Parallel 5ths (Jewish Steel)
@Parallel 5ths (Jewish Steel):
Ah, here it is:
https://balloon-juice.com/2011/02/22/three-decades-of-union-busting/#comment-2442327
Mike Kay (Chief of Staff)
For the people here who hate Obama, you’re wasting your time. 91% of self described liberal Democrats approve of Obama.
Keep pulling out your hair – it won’t do any good.
LT
??
Dude, I appreciate it and am very impressed by it. And remain extremely disappointed in some things. Those things can exist side by side. I know you want to label me some kind of “Firebagger”, but that is not just silly, it makes you what you claim to criticize. I’m glad Obama’s president. I appreciate a lot of really good things he’s done. And I think he could do a lot better.
This should not make you cry.
joe from Lowell
@sparky:
Actually, I was explaining the reasoning in Holder’s letter and public statement, which you obviously never bothered to read before dismissing it.
I haven’t the foggiest idea what your blather about “It doesn’t matter if I can’t even think of an argument why you’re wrong” is supposed to mean, but I’m not going to lose any sleep over that.
Anyway, if you have even the slightest rebuttal to Holder’s reasoning, you should feel free to throw it on out there.
I’m not going to hold my breath, though.
Yawn. This is what they teach in freshman year Logic class as an “ad hominem” fallacy. You can’t actually come up with a rebuttal to an argument, so you declare that it must be wrong because of some alleged shortcoming on the part of the speaker. You should really take that class before you graduate, son.
Now, onto your specific nonsense:
1.
False. The DOJ plays all sorts of roles in court cases beyond counsel for the defense. For instance, they issue amicus briefs. (You should look that up). In this particular matter, they can be expected to argue for heightened scrutiny.
2.
False. The Obama administration has invited other interested parties, such as Congress as an institution or any individual Congressman, to take up the mantle of defending DOMA. To discern this arcane secret, I read the Holder letter and statement that you’ve obviously never even bothered to skim.
3.
Back one? You poor, deluded little thing: it was never turned off. Your fringe of a segment of a minority of a faction doesn’t speak for gay people as a whole, no matter how many of your buddies can’t see through your nonsense.
You don’t know the first thing about legal procedure, and you can’t even be bothered to read a damn link. Please stop talking until you educate yourself.
LT
@General Stuck: This guy is a lawyer.
I have to confess I don’t know the intricacies of the cases he cites.
joe from Lowell
@LT:
The same thing as what? I don’t follow what you’re saying.
Again, is this a joke? People have explained the difference dozens of times already on this thread.
General Stuck
I’m about at the point on this blog, for cheering Obama on to fuck up as often as possible, to get a little peace. This success shit brings nothing but pain.
LT
@joe from Lowell: Saying “they have to defend DOMA” is the same as saying “it’s the law that they have to dfeend DOMA.” What’ the difference? It’s clear that they didn’t have to. Whether they should have before is a different argument, but it is clear that people who said they had to were wrong.
LT
@General Stuck: “But at that time that statement was true.”
Um, that’s just wrong.
joe from Lowell
@General Stuck:
I don’t think that’s true. It isn’t 1994 anymore. It’s not even 2004, when Bush could make gay-bashing a central plank in his reelection campaign.
I’m not saying that gay rights is a winning issue for Obama, but neither is attacking gay people a winning issue for conservatives. This is why the issue was virtually absent from Republican campaigns in 2008 and 2010.
Allan
@General Stuck: But then the terrorists win!
The key thing to remember when you feel fatigued by having the argument is this: the purpose of arguing is not to change the mind of your opponent, because that hardly ever happens.
The point of having the argument is for the benefit of the observers who are actually trying to learn, who can then evaluate both sides and come to their own conclusion.
You’re winning, btw.
Bob Loblaw
@General Stuck:
No he isn’t. He doesn’t even have a viable opponent.
It figures the first time you’d flock to Greenwald’s defense is when the ‘zilla is talking out his ass. It just figures.
General Stuck
@LT:
From the link above
It would have been unethical, and in the legal world, that carries about the same import as illegal. Which I don’t think was stated as such on this thread, but might have been.
FlipYrWhig
@Aconite:
Is this utter bullshit ever going to go away? It’s not true. Jon Aravosis said it was true, and a bunch of otherwise sensible people bought it, and they have never, ever, EVER let go.
Once more. The argument was that there are other cases in which marriages regarded as valid in one state are not regarded as valid in another — ergo, the fact that same-sex marriage had been authorized in one state didn’t mean it had to be authorized in any other state. States have a patchwork of marriage laws, and having some states with SSM and others without would be no more inconsistent than things already were.
What kinds of things invalidate straight marriages? Minimum ages and consanguinity, i.e. “incest.”
That was the comparison. In some states, you can’t get married too young; in some states, you can’t get married to someone too closely related; and in some states, you can’t marry someone of the same sex.
(“Bestiality” was never in there, either.)
Stop putting this on the list of grievances. It’s bullshit.
General Stuck
@joe from Lowell:
It may end up not being true, but there is little evidence to suggest it isn’t “risky” which was all GG and I said. There are more than a few states with overwhelming majorities banning gay marriage by referendum, and fairly recently. Polls have been moving in the positive direction lately, so we shall see. I hope that you are right, and I am not saying it will cause reelection problems, just that it is risky.
joe from Lowell
@LT:
Do you actually believe there are no obligations in life beyond the legal ones?
Saying “they have to defend DOMA” is the equivalent of saying “It would be wrong for them not to defend DOMA.”
This latest maneuver by Holder doesn’t prove that point wrong. He found a loophole to the general rule, and good for him. It would have been wrong for the administration not to defend the law, until this case was filed in the 2nd Circuit. It would have been wrong for the administration not to at least go through the motions of defending DOMA given the situation at the time they made those statements. It would be wrong for them not to defend a law in the future, given similar circumstances.
But they found a loophole. If you want to understand what’s changed, read Holder’s public statement or his letter to Congress.
FlipYrWhig
@Aconite:
Is this utter bullshit ever going to go away? It’s not true. Jon Aravosis said it was true, and a bunch of otherwise sensible people bought it, and they have never, ever, EVER let go.
Once more. The argument was that there are other cases in which marriages regarded as valid in one state are not regarded as valid in another — ergo, the fact that same-sex marriage had been authorized in one state didn’t mean it had to be authorized in any other state. States have a patchwork of marriage laws, and having some states with SSM and others without would be no more inconsistent than things already were.
What kinds of things invalidate straight marriages? Minimum ages and consanguinity, i.e. “in.cest.”
That was the comparison. In some states, you can’t get married too young; in some states, you can’t get married to someone too closely related; and in some states, you can’t marry someone of the same sex.
(“Bestiality” was never in there, either.)
This is not to say that I agree with the brief. For example, the same logic could have been used to defend the existence of anti-miscegenation laws.
But it is _not_ a case of LGBT people being likened to pedophiles and predators.
Stop putting this on the list of grievances. It’s bullshit.
Bob Loblaw
@Mike Kay (Chief of Staff):
Is that a serious argument?
By your logic, Bill Clinton was better than Obama because he was more popular. He wasn’t better.
Hell, by your logic, we should impeach Barack and install the more popular Obama in his place. First female President FTW.
General Stuck
@General Stuck:
I am proud that Obama took this move, no matter, and support it fully, due to being the right thing to do. Politics be damned in this particular case.
Nerull
@LT: Legal precedent is set by the decisions of a court and of courts ranking above it. As there is no previous ruling to base precedent on for the court in question, it is free to consider the law differently.
FlipYrWhig
Mods, I have a partial dupe in the pipeline — I forgot that “in.cest” needs special punctuation. Please delete the first of the two similar comments, if possible.
joe from Lowell
@General Stuck:
Exactly.
I’ve been trying. Why the term “legal ethics” didn’t occur to me, I don’t know.
LT
Are you saying when this was done in the past, that they only did it in courts where there wasn’t precedent on the particular case? Do you know this?
LT
@Nerull: Thank you.
Couldn’t it be argued that there are Supreme Court rulings on marriage that speak to this?
joe from Lowell
@FlipYrWhig:
Thank you! I was just explaining this to Bob Loblaw last night.
In the paragraph immediately before the oft-misrepresented one, the DOJ talks about how courts have long applied this principle of recognizing states’ authority not to apply each others’ laws in a number of other areas one. They cite a case in which California refused to pay workman’s comp to someone who had been awarded it in Massachusetts.
OMG, Obama said that gay marriage was like paying workman’s compensation!
joe from Lowell
Barack Obama thinks that gay marriage is like throwing your back out at work.
Oh my God Obama sold us out he’s just like Bush!
Bob Loblaw
@joe from Lowell:
And it doesn’t prove it right either. It makes no positive or negative claim on the necessity of following binding precedent 100% of the time. The administration got to have its cake and eat it too. And it wasn’t a matter of luck, unless you think the DoJ is completely out of the loop with regards to the actions of (mostly) allies like gay rights groups and the ACLU. They know what they’re doing on civil rights.
The new precedent was desired in what is a legal vacuum. The decision must therefore be considered in a vacuum. We have no idea what the administration feels about a hypothetical rejection of precedent in different circumstances. You can continue squabbling on that until the end of time, or something forces the issue, whatever comes first.
LT
@joe from Lowell: How does this not contradict you. As far as my understanding of that AG, it is entirely leal for a president and DoJ to not defend a law if they think it’s unconstitutional. Period. If I’ve misunderstood, please explain.
General Stuck
@LT:
It may chap you some, but no, it is not just wrong.
LT
@General Stuck: But a president can choose that.
Bob Loblaw
@joe from Lowell:
Um, no you weren’t, you liar. Don’t namedrop.
Yesterday we discussed failed Iraqi reconstruction and American complicity contained thereof. That’s the last time we interacted. You’ve never “explained” shit about John Aravosis.
I do love how you continue to think we all sit around mouths agape waiting to receive your wisdom. We’re all your eager students. Teach us oh wise one.
joe from Lowell
@Bob Loblaw: I think you might have misunderstood me. I wasn’t writing about following binding precedent, but about choosing not to defend a law.
But I agree with your overall point. The administration wanted to argue that some kind of heightened scrutiny applies, not rational nexus, and wanted to do it in a circuit that hadn’t ruled on the matter, instead of trying to get a circuit that had ruled on that question to overturn itself.
Do you think they did this for the purpose of creating a split among two different circuits, to set the case up for SCOTUS to take it? That’s what it looks like to me.
joe from Lowell
@LT:
It is.
My point is that the black-letter law in the federal code is not the only set of standards the DOJ is compelled to pursue.
General Stuck
@LT:
umm, can he choose to act unethically? He could, I guess. But then you and others would likely be here saying he is bad as Bush, now wouldn’t you? Please stop, this is painful to watch and be a part of.
joe from Lowell
@Bob Loblaw:
Whoops, I had you confused with someone else.
Now that’s funny. Why do you imagine anyone would be interested in dropping your name?
joe from Lowell
@Bob Loblaw:
Right, right – where you weaseled all the way from “Obama is responsible for the killing of protesters by Iraqi security forces,” all the way to “Well, we’re still involved in Iraqi reconstruction, which is totally the same thing as running the security forces.”
That was hilarious.
I can’t believe you willingly chose to relive that experience.
Bob Loblaw
@joe from Lowell:
Yes. They have no legislative path to overturning it. They won’t have 60 votes in the Senate again, and even though Republicans like Collins and Brown and whoever care as much about maintaining the law as they did about DADT (which is to say, not at all), they’ll never willingly give the administration another big win unless he’s so politically popular that they can no longer deny him. So now the admin is going to play around in the courts, in the most hands-off way possible, obviously. Whether the law will survive this administration will likely be up to Anthony Kennedy, surprise surprise.
Mike Kay (Chief of Staff)
@Bob Loblaw:
you should read more carefully. I said, self described liberal Democrats.
bill clinton never had a 91% approval ratings among liberals.
“Install the more popular obama”??? Show me a poll saying Michelle has higher job approval numbers with self described liberal Democrats.
Once again, this isn’t about popularity, it’s about job approval. His personal popularity rating is even higher than his job approval numbers.
Facts are facts. You gonna have to deal with the reality that liberal Democrats approve of the job he’s doing.
Bob Loblaw
@joe from Lowell:
Why did you just do so ten minutes ago then? This might be the most pathetic dodge I’ve ever seen.
@joe from Lowell:
Why lie, seriously, why lie? I never moved for a second. I never do.
I said it was an embarrassing foreign policy failure for the US government that Iraqi soldiers (that we trained and financed) were shooting and killing Iraqi citizens protesting the failed reconstruction of their country. A reconstruction that is ongoing, with hundreds of thousands of American personnel (military and civilian) still there. I never said the President was “responsible” for the decisions that were made by those soldiers, I said we cannot wash our hands of the choices that were made, and are still being made, that led to the situation in the first place.
kamalokitty
Such an awesome website. I was linked back here through the Daily Dish. This is great! I have to go back and read what’s going on in the other circuits, because frankly, I don’t know how they decided rational basis applied in the first place, but whatever. Seems to me, the DOJ is setting a collision course. The circuits will eventually be in conflict. Some applying strict scrutiny, while others apply rational basis. The Supremes will have to resolve the conflict.
I understand the logic of not defending where there is no precedent. DOJ is bound to faithfully execute. If there is no law, then they have to argue what they think the law ought to be. And they have decided they can’t argue rational basis should apply with a straight face.
If a circuit established what scrutiny should be applied, they have to follow the law of that circuit. But if the question is unsettled, and the question is being asked of them, and they decide they cannot argue anything less than strict or a degree higher than rational basis, why can’t they do exactly as they have done?
Meanwhile out here in CA, the gov and AG decided fuck this shit, they can’t defend Prop 8 because it’s indefensible. Even the defenders could not come up with a cohesive defense that their own expert could adopt. Why do they have to defend every cockamamie idea that passes via this initiative system? Should they not have some discretion to decide what will is legally defensible or what is not? Or are they just our puppets? I can’t wait to see how the Cal Supremes answer those questions.
This is so fantastic, history unfolding before our eyes. Woot!
asiangrrlMN
@Sly: Lots of people said just wait or it’s not of primary importance. On this blog. It’s one reason I quit reading the queer threads. Were there queer people doing stupid things? Yes. But, there were also queer people expressing legitimate frustrations with Obama and some of his decisions in how he handled queer issues. Far too much attention was paid to the former and far too often the latter were told to wait, wait, wait.
@Cole, thanks for owning up to your mistakes in this thread. I wish others could do the same.
Bob Loblaw
@Mike Kay (Chief of Staff):
That doesn’t concern me here. I’m saying you’re being lazy. Poll results aren’t something you can just appeal to and have them be the be all end all.
You can say Obama is popular because he is good, and that can neither be confirmed or disproved. You can say he is good because he is popular. But that can also be neither confirmed or disproved. You have to go deeper if you want to win over skeptics. You’re just trying to use shame and stigmatization, which is lazy and hardly necessary with an administration with this many varying accomplishments to point to instead.
Nerull
@LT:
The issue in question isn’t really marriage related, from what I understand.
The issue is the standard with which discrimination is judged. There are three standards – strict scrutiny, intermediate scrutiny, and rational-basis – by which constitutionality is judged. By precedent in several courts, sexual orientation is not enough to trigger a standard other than rational basis. Obama and the DOJ are hoping that the court in this case agrees with them that sexual orientation should be protected, and trigger stricter scrutiny – and under that standard they believe the law to be unconstitutional.
I’m no lawyer by any means, but if I’m reading this stuff right, this has a bearing not only on this case but future cases as well, granting a ‘protected status’ from discrimination, if the decision is confirmed by the supreme court.
Nerull
Such protected status would, I think, keep any future conservative presidents/congresses from pushing similar laws.
Nerull
And that would be a pretty big win for LGBTs, I believe.
Can we please get edit working? FYWP.
General Stuck
@kamalokitty:
Please stick around :-)
General Stuck
@Nerull:
right click on the :click to edit: button and then click “open link to new window”, and you can edit then.
NobodySpecial
@JGabriel: Whenever someone says stare decisis, I have a couple of words for that, Plessy v. Ferguson being some of them.
General Stuck
@Allan:
Thanks. I will try to remember this. I just wish it payed better is all. just kidding.
Mike Kay (Chief of Staff)
@Bob Loblaw:
what skeptics? According to polling, there’s only a handful. And ya never gonna get everyone.
I just point out the data.
That you find it stigmatizing speaks to you not me.
IL JimP
It’s not about level, it’s about where in the country. The 2nd circuit is in a different region of the country, where there hasn’t been a constitutional challenge before, so the Admin. could set the precedent of the higher standard. In previous cases, the Admin. was defending the law in a region of the country (district) where there was already the more permissive precedent.
cyd
By the way, some people apparently saw the current flap coming a month ago: see this NY Times article and this law professor blogging about it.
LT
@joe from Lowell:
Well, that’s fine, but I don’t think it’s a basis to diss people who say he could have done this earlier.
JGabriel
@NobodySpecial:
Point taken, and agreed with, as far as it goes. But Obama and Holder can’t make strategic analyses and decisions based on the hope that a judge will ignore stare decisis and override precedent.
Yes, it happens — often enough with unjust motivation to be annoying. But not often enough to rely on it as a strategy.
.
Bobby Thomson
I’ve been having this debate with joe from lowell for the last several days. That position would be right if the administration were arguing for heightened scrutiny in the Second Circuit, where no precedent to the contrary exists, while continuing to argue for the constitutionality of the statute in circuits that have already decided that rational basis review applies. But they aren’t. The new position is much bolder and more intellectually consistent than that. The last page of Holder’s letter to Boehner says that the administration will be letting all courts know of its position that the standard should be heightened scrutiny. Now, just because they are taking a position in the Second Circuit has no effect, as a legal matter, on what law applies in other circuits. Courts of appeals in those other circuits (and the trial courts below them) are bound only by their own precedent or by the U.S. Supreme Court. This means that the DOJ will effectively be telling the courts of appeals in other circuits that they got the law wrong and that rational basis review does not apply. However, they could have taken that position from day one.
My suspicion is that, because the Second Circuit had no binding case law, the AG and probably the president himself asked for a complete reevaluation of administration policy and brought new focus to the decision.
Bobby Thomson
@lol:
No, it’s very possible. In fact, it’s the new administration policy, as Holder says on the last page of his letter to Boehner.
Bobby Thomson
@JGabriel:
You don’t understand this correctly. They are not going to argue for rational basis review anywhere anymore, as Holder says in his letter to Boehner.
different church-lady
This is why I love your blog John: while everyone else is using their blog to TRY TO PROVE MY POINT!!!!, you’re using yours to learn and understand.
Unlike damn near every other blog I read, I feel less stupid now instead of more.
grumpy realist
As I repeat, everyone: this is a Common Law country. A lot of our stuff we don’t have pinned down in a statute, and courts have been waffling about the level of scrutiny required for sexual discrimination/sexual orientation for YEARS.
This also happens because sometimes an argument which gets used to make a earlier decision somewhere at the Appeals court level gets struck down at SCOTUS in some other case….but no one goes back and applies the striking down of the argument to whatever law was decided at the Appeals level. It’s only when you get a new case on the same topic that you have a chance to get the old law actually overturned.
Also even though decisions by SCOTUS are supposed to be the supreme law of the land, you’d be surprised how long it takes for the Appeals Courts to catch up. There are certain areas of patent law where it’s quite notorious that the Appeals Court has been ignoring SCOTUS decisions and merrily going their own way.
Grumpy Code Monkey
@Sly:
Yeah, joining this party very late.
The truth is that there are a significant number of “progressives” who want Obama to rule as a liberal dictator. End DADT right fucking now, support full-on gay marriage rights right fucking now, end the war in Afghanistan right fucking now, and drag George the Lesser, Darth Cheney, Rummy, Dougie, et al. in front of the Hague right fucking now, regardless of pesky impediments like law or constitutionality or separation of powers.
Basically, to be exactly like George the Lesser, but on their side.
Fortunately, we elected an adult who happens to believe that things like rule of law are important, and who’s moving in such a way as to establish a solid foundation for overturning DADT and DOMA in such a way that a) makes it harder for future administrations to reverse the decision, and b) makes Congress do its fucking job.
Bob Loblaw
@Mike Kay (Chief of Staff):
So then why worry about them constantly?
Um no, it speaks to the point of releasing polling information publicly. A poll isn’t collected just to improve predictive outcomes, it’s also meant to drive outcomes by changing public perceptions. By reinforcing preexisting narratives and stigmatizing those “on the wrong side of the issue” by strength of numbers.
There are hundreds of compelling reasons to say Obama is a good President. His poll numbers are not one of them.
celticdragonchick
@eemom:
I and possibly several other people emailed John regarding some especially egregious comments regarding her actually wishing death on my own father for having been a missionary in Zimbebwe. This was on the same day she was warned by John, I believe. She appears to have serious mental problems. I have not seen another post from her since then.
Aconite
Thank you to the people who responded to my previous comment. Whether we agree or not, I appreciate your participation in dialogue.
I’ve read the blog for a long time, but I rarely wade into the comments, so I don’t know most of you. I don’t know your interactions or histories together; I don’t know which topics you’ve dealt with so many times you have shorthand ways to refer to them. I have to take things at face value.
If you really, actually want to know why some people in the gay community are upset about how Obama’s handling gay rights issues, you could try listening to them when they tell you. If you’re just making a rhetorical statement for the purpose of saying “OMG they are soooooooo dumb LOOZERZ!!!!1!” in better language, well, my bad. I misunderstood.
The issue you are debating is not abstract to me. It is not an intellectual exercise. It affects my daily life, profoundly, in painful, unavoidable ways.
Perhaps you can read a brief that compares your most treasured relationship to a marriage between an uncle and niece and not wonder if, in light of the long history of attacks on same-sex marriage that say it’s the first step to legalized incest, a different example could have been used. If you haven’t had that crap thrown at you–your community, and you specifically, and the person you love more than anyone else in the world–maybe you honestly don’t get what the big deal is. It’s just an example, fer christssake, they had to have something, why not that one? Get over it. Why are you so thin skinned?
Because it affects me concretely. DOMA isn’t just a ridiculous piece of unconstitutional bigotry. It is a ridiculous piece of unconstitutional bigotry that restricts my daily life in ways you can hardly imagine if it doesn’t apply to you. These defenses of it are not just theater to me. They are words that are going to be thrown back at me and my partner as justification to do hateful, harmful things to us. I do not believe it is necessary to further insult the people you are supposedly benefitting in the process of regaining rights that should never have been taken from them in the first place.
I respect the rule of law. I do not believe the world is a better place when people simply ignore laws they don’t like. Nor do I think the process of law should be used to create and sustain bullshit for the sole purpose of reassuring bigots, and it rankles to have to wade through yet more bullshit on the long, slow process to get a bad law overturned.
Every single day DOMA is still law, my partner and I are at risk. That is not melodrama; that’s what we live with. If I die tomorrow, my partner gets none of my federal benefits. If she dies tomorrow, my employer doesn’t have to give me even one day of compassionate leave to bury her, since we’re “not related.” She and I have to carry sheaves of documents proving we have the legal right to make medical decisions for each other, and we have to be prepared to face illegal stonewalling even when we have those documents. This is the reality of my life.
So no, I don’t take it well when my fierce advocate hands more ammunition to the people aiming at me. Your perspective may be different. DOMA repeal could have been handled with far more tact and respect for the people whose lives it affects. I believe it is entirely appropriate to insist on that respect.