Tilted Forum Project Discussion Community - View Single Post - DOJ won't defend constitutionality of DOMA; conservatives vow to make it 2012 issue

Baraka_Guru · 02-24-2011, 04:29 PM

In a clear change of course, Obama has instructed the Department of Justice against defending the Defense of Marriage Act (DOMA) in court on constitutional grounds.

Quote:

U.S. reversal on gay unions won't affect married couples for now

By Jerry Markon
Washington Post Staff Writer
Thursday, February 24, 2011; 6:21 PM

For the nation's estimated 80,000 legally married same-sex couples, the Obama adminstration's decision to stop defending the federal law that bans the recognition of gay marriage will have little immediate effect.

Lawyers and gay rights activists said Thursday that the administration's announcement was one step - albeit an important one - in a battle over the law's constitutionality that is likely to play out in the federal courts over the next several years.

The Justice Department on Wednesday said it would no longer go to court to oppose challenges to the 1996 Defense of Marriage Act, which defines marriage as between a man and a woman and denies marriage-based federal benefits to same-sex married couples. The administration said it no longer considers the law constitutional.

The decision drew outrage from Republicans and applause from gay rights activists, who have won a series of political victories. But underlying the euphoria was a recognition that nothing had changed for same-sex married couples who say the law discriminates against them, and that the U.S. Supreme Court is likely to have the last word.

"There's going to be at least a couple of years of litigation over this, and sooner or later the Supreme Court is going to have to weigh in,'' said Darren Rosenblum, a professor at Pace Law School in New York and an expert on gay and lesbian rights.

While legal experts differed on whether the law is constitutional, they said the Justice Department's change of position will have a major impact on appellate courts that consider the issue. As the government's lawyer, the department is generally given significent weight in constitutional cases.
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"This is the executive branch saying to the judicial branch that we believe the law is unconstitional. Courts will pay a lot of attention to that,'' said Jon Davidson, legal director for Lambda Legal, which fights for gay and lesbian rights.

The Defense of Marriage Act states that for federal purposes, "the word 'marriage' means only a legal union between one man and one woman as husband and wife.'' Gay couples can legally marry in five states and the District. But the federal law means that legally wed same-sex couples are denied an array of benefits available to heterosexual couples. Those include the ability to file joint federal tax returns, to be exempt from certain federal taxes and to have a spouse who is an immigrant legally remain in the United States.

Six challenges to the Defense of Marriage Act are working their way through federal courts, including in Massachusetts, where a judge in July struck down the law. The Justice Department had appealed that decision.

Officials said the department will now advise courts that it will no longer defend the law. Members of Congress can mount a defense, and opponents of same-sex marriage have called on House Speaker John A. Boehner (R-Ohio) to intervene.

A spokesman for Boehner declined to comment Thursday.

But even if Congress doesn't officially step in, lawyers said they expect that the Massachussetts case and others will still be decided by appellate courts that can weigh briefs filed by same-sex marriage opponents.

The new legal battle began Thursday in California, where a judge in one of the cases challenging the federal marriage law ordered the government to explain how its change of position affects the case. The suit was filed on behalf of a federal employee who was denied health benefits for her legal spouse. The Justice Department has until March 7 to respond.

U.S. reversal on gay unions won't affect married couples for now

This doesn't immediately mean much other than perhaps a step into a direction that proponents of gay marriage have hoped to see.

What do you think?
Is this a step towards the legalization of gay marriage?
Is this a shallow gesture, perhaps Obama's way to getting ready for the next election?

Then there's this:

Quote:

Conservatives vow to make gay marriage 2012 issue

By DAVID CRARY and LISA LEFF
The Associated Press
Thursday, February 24, 2011; 5:02 PM

NEW YORK -- Angered conservatives are vowing to make same-sex marriage a front-burner election issue, nationally and in the states, following the Obama administration's announcement that it will no longer defend the federal law denying recognition to gay married couples.

"The ripple effect nationwide will be to galvanize supporters of marriage," said staff counsel Jim Campbell of Alliance Defense Fund, a conservative legal group.

On the federal level, opponents of same-sex marriage urged Republican leaders in the House of Representatives to intervene on their own to defend the 1996 Defense of Marriage Act, or DOMA, against pending court challenges.

"The president has thrown down the gauntlet, challenging Congress," said Tony Perkins of the Family Research Council. "It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president's neglect of duty."

Conservatives also said they would now expect the eventual 2012 GOP presidential nominee to highlight the marriage debate as part of a challenge to Obama, putting the issue on equal footing with the economy.

Gay rights activists welcomed Wednesday's announcement from the Justice Department, sensing that it would bolster the prospects for same-sex marriage in the courts. Among Democrats in Congress, there was praise for Obama's decision and talk of proposing legislation to repeal the law altogether.

"I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now," said Sen. Diane Feinstein, D-Calif. "My own belief is that when two people love each other and enter the contract of marriage, the federal government should honor that."

On the state level, there were swift repercussions.

In Rhode Island, the Roman Catholic bishop of Providence, Thomas Tobin, said Thursday that his diocese would "redouble its efforts' to defeat a pending same-sex marriage bill in response to the announcement. In Iowa, conservative activist Bob Vander Plaats said the DOMA decision would invigorate a campaign to repeal the state's court-ordered same-sex marriage law.

"This gives us more credibility than ever with this issue," said Vander Plaats, who wants to topple the Democratic leadership in the state Senate that is blocking efforts to put a same-sex marriage repeal proposal on the ballot.

[...]

Conservatives vow to make gay marriage 2012 issue

This is interesting. It is perhaps the case that gay rights could very well be one of the battlegrounds in 2012.

I think 2012 will be very interesting. There will certainly be a heated battle on a number of fronts. It will be a battle of both economic and social ideology.

Does anyone else feel a storm brewing?