BREAKING: Department of Justice has appealed Mass. rulings against DOMA

[FreeState]

http://www.ksro.com/news/article.aspx?id=2540276

The U.S. Department of Justice has appealed rulings by a judge in Massachusetts who deemed unconstitutional a federal law denying married gay couples federal benefits.

The DOJ on Tuesday filed a notice of appeal in rulings made by U.S. District Judge Joseph Tauro in two separate lawsuits.

Tauro ruled in July the federal Defense of Marriage Act is unconstitutional because it interferes with a state's right to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples.

President Barack Obama has repeatedly said he would like to see the DOMA law repealed. But the Justice Department has defended its constitutionality, which it is required to do.

Massachusetts was the first state to legalize gay marriage.

[BzaDem]

1. This is not surprising. The government is forced to appeal unless there is no legitimate defense

of the statute under current doctrine.

We all hate current doctrine. But current doctrine not ban discrimination on the basis of sexual orientation. I hope the Supreme Court will soon declare that "equal protection" applies to all. They have not done so yet. (The Prop 8 case will give them a chance.)

Imagine a world where under a Republican president, a Republican claimant can sue the government claiming Medicare is unconstitutional (in the most right-wing judicial district in the country). If the judge rules it unconstitutional, would you want to allow the government to refuse to appeal?

This is not to say that DADT will survive appeal. Current doctrine can be changed by the Supreme Court and/or the ninth circuit.

[msanthrope]

2. Lamarr Smith wants the judge to allow HIM to appeal, not the DOJ, citing:

“The DOJ has clearly let the president’s policy preferences dictate its litigation strategy,” Smith argued in his motions to intervene. “DOMA ... should receive a true defense rather than a hollow one designed to pacify political constituents.”

Tauro has yet to rule on Smith’s motions, filed Oct. 5 by the Alliance Defense Fund, an organization of Christian lawyers active in religious liberty, family and marriage issues.

A lawyer for 17 gay spouses who sued to overturn DOMA scoffed at Smith’s allegation that the Justice Department was trying to throw the case.

Government lawyers are pursuing a powerful legal argument by insisting that Congress had a rational basis for enacting DOMA, said Mary Bonauto, a lawyer for Gay and Lesbian Advocates and Defenders, a New England legal defense nonprofit.

http://www.statesman.com/news/texas-politics/texas-lawmaker-seeks-role-in-appeal-of-gay-966565.html?printArticle=y

Apparently, the wingers think Obama will throw the case...and they should be worried, because the DOJ brief read:

"In legal briefs defending DOMA, Justice Department lawyers noted that “as the president has stated previously, this administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

But the department added that “consistent with the rule of law,” its lawyers have long defended federal laws it disagrees with.

And Friday, agency spokeswoman Tracy Schmaler said via e-mail, “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”"

[no limit]

4. Where in the world are you getting the idea that the government MUST appeal

they don't. It's their decision. They CHOSE to appeal it.

And if you think that if a judge under a republican administration ruled medicare unconstitutional that administration would appeal it then I have a bridge to sell you.

I'm not suprised they are appealing it, I called it here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9302670

[treestar]

5. It would only apply to Massachusetts

The SCOTUS ruling would apply to the entire country.

I don't get the stubborn insistence on taking this as a negative. It's like admitting the rule of law would not support this judge's decision.

[no limit]

6. Not true. This is a federal court. It applies to the entire country.

[msanthrope]

9. No.

A single district federal court does not apply to the whole country.

You should read up on lateral authority.

[no limit]

26. Do you have more information on this? I find that very hard to believe

How can you only apply DADT to a single state when the military is a federal institution? Makes no sense. Can you cite this?

[msanthrope]

34. Dude, This is DOMA. Not DADT.

Seriously, if you don't understand how federal courts work, look it up.

[no limit]

40. Oh, I confused this with DADT. That other issue this administration threw under the bus

my apologies.

[TriMera]

41. It's easy to get confused.

They both start with D, they both effect gay people, and the Administration has been "fiercely advocating" both of them (in their own special way). ;-)

[no limit]

44. Yup, "special" certainly is the keyword there.

[Statistical]

84. Well that is sometimes how the law works.

Prior to McDonald decision one federal district court ruled the 2nd amendment applies to the states. Another federal district court ruled it doesn't.

So for about 8 months the 2nd ammendment applied to roughly 1/7 of the states, didn't apply to another 1/7 and was ambiguous to the other 5/7th.

This is one reason why the Supreme Court heard McDonald v. Chicago quickly. The split precedent creates confusing and uncertainty.

The person you responded to is correct. A federal district ruling only has direct precedent in that district. Someone can use it was precedent in another district however that judge is able to issue a conflicting ruling.

[BzaDem]

7. Federal law MANDATES that the Federal Government vigorously defend laws passed by Congress, unless

there is no legitimate defense under CURRENT doctrine.

While we all hate current doctrine, the fact is that current Supreme Court cases easily provide a legitimate defense of the law. As repugnant as it is, Supreme Court cases go out of their way to not recognize an equal protection claim for discrimination on the basis of sexual orientation. While I think this will change soon, and may even change if the government appeals, it is simply factually false to say that there is no legitimate defense under CURRENT case law.

We might win the appeal (and I certainly hope we do), but the idea that there is no legitimate defense to these laws under current case law is simply not accurate (no matter how much we hate current case law).

[joeybee12]

8. Where?

Where is this elusive law that people like you refer to but can never produce? Where?

[msanthrope]

12. It's called the "Duty to Defend." The Office of Legal Counsel, which binds the DOJ,

Says this....

The Department of Justice has a duty to defend the constitutionality of anAct of Congress whenever a reasonable argument can be made in itssupport, even if the Attorney General concludes that the argument mayultimately be unsuccessful in the courts. The Attorney General’s Duty toDefend the Constitutionality of Statutes, 5 Op. Off. Legal Counsel 25(1981).

[no limit]

27. You are referring to a memo. The Obama admin could easily write a new memo.

This memo you speak of has absolutely no basis in congress. If Obama wanted to change it he could.

I must say though, I'm impressed with how quickly you guys come up with this bullshit.

[leftstreet]

50. +1

[hendo]

76. +1 NT

[ruggerson]

38. That's not a federal law

and the key sentence is "whenever a reasonable argument can be made in its support."

When a statute is found unconstitutional by a lower court, the administration is not by any means legally bound to defend it.

[treestar]

69. Why is everyone afraid of this case going to a higher court?

Even if the Administration left the ruling to stand, the same issue can come up in another state or circuit. If that court finds against the position you want, the Administration would HAVE to appeal it in your opinion. It will remain unsettled anyway until it get to the Supreme Court. So what's the point in putting it off?

Any if the case was won on this level, why are you so afraid of testing the question at the next level and the next? Do you fear that this ruling is wrong?

[ruggerson]

94. If you're asking me personally

it's because I think it's a weak case. I'd rather see the Prop 8 case wind its way up the ladder. And I don't want this one to damage the prospects of another stronger case.

[JustinL]

59. what "reasonable argument" can be made in support of DOMA? n/t

[hendo]

79. many other fear/hate based pieces of legislation are allowed to stand? NT

[Bluenorthwest]

14. Cite please.

Y'all keep saying that, but you do not ever actually cite the law you claim forces them to do the reprehensible. So cite it. Feel free. Or retract. Your choice.

[BzaDem]

22. 1980 OLC memo 55 by Attorney General Civiletti under Carter

otherwise known as "The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation" is the OLC's analysis of the Constitution and federal law applied to this question, and it legally binds the Department of Justice.

[msanthrope]

24. I cite the relevant quote upthread....

[no limit]

28. You forgot to mention that Obama could write a new memo.

[msanthrope]

30. Of course--right away. The Office of Legal Counsel could pen a

special memo that says that the Obama administration, and only the Obama administration doesn't have to defend laws it doesn't like.

[no limit]

39. Yup, the Obama admin already established it can break laws it doesnt like

when it comes to torture, wiretapping, rendition, etc.

But I guess when it comes to teh gay suddenly the rule of law is a priority. Funny how that works, no? Eventhough nothing in the law forces them to appeal this. Seriously, nadda. You posted a memo, a memo that was written by people that work for the white house.

[BzaDem]

45. Obama's interrogation, wiretapping, and rendition policies are ALL governed by OLC memos.

So you simply provide more examples where Obama is following the OLC, not an example where Obama is ignoring the OLC.

[no limit]

46. Jesus christ, you can't possibly be serious. Who writes the memos of the OLC?

Do you remember the name Alberto Gonzales at all?

[BzaDem]

47. The people who work at the OLC. Duh.

Obama cannot tell the OLC change their analysis anymore than Bush was able to. Bush actually tried to do this, and he only backed down because the top 5 layers of the justice department and FBI director were about to resign because of it.

[no limit]

48. Do you recall the name Alberto Gonzales?

[BzaDem]

49. Do you recall the name of Jack Goldsmith?

He was the one at the OLC that told Bush and Cheney that their entire wiretapping program was unlawful. Cheney convinced Bush to ignore the OLC, for one day. Bush ended up reversing himself and agreeing with the OLC after the Attorney General and the top 5 levels of the Justice Department were about to resign, along with the director of the FBI and others there.

[no limit]

51. I don't have time to look up the name. Let me get this right, you are saying Bush didnt wiretap?

By wiretap I mean warrentless wiretapping. You are telling me Bush did not do this?

[BzaDem]

52. I'm not saying that at all. They did it unconstitutionally for quite awhile,

until Jack Goldsmith told them it was unlawful. (Jack Goldsmith didn't even join the OLC until a few years in.)

At that point, Cheney convinced Bush to ignore the OLC for the first time, and the top five levels of his justice department were about to resign. The second Bush found out about that, he immediately reversed himself, and told the NSA to get in compliance with what the OLC wrote.

[no limit]

53. He got in compliance how? He stopped wiretapping?

[BzaDem]

54. Wiretapping is not unconstitutional in many cases. They got warrants from the FISA court. n/t

[no limit]

55. They absolutely did not. Much of their wiretapping did not go through the FISA court

so how did they get around it?

Is the OLC above the US constitution? Does that mean any advice Bush got from the OLC make him immune from prosecution?

[BzaDem]

61. The OLC is not above the US constitution, but the OLC's advice to defend laws is obviously correct.

The President's job is to enforce all laws (set forth in the Constitution) that are Constitutional. The Supreme Court decides which laws are Constitutional. Current doctrine from the Supreme Court indicates DOMA is Constitutional (or at least provides a plausible defense for it).

You would have us believe that not defending the Constitutionality of laws is somehow consistent with enforcing all laws Constitutional under current doctrine. But this couldn't be true, since if it were, any President could refuse to enforce ANY law by simply not appealing an adverse ruling. Your proposal is blatantly unconstitutional.

Congress can get rid of DOMA, and the Supreme Court rule DOMA unconstitutional (or the next highest court if they don't take the case). I hope Congress acts, and in the absence of that I hope the higher courts act. But the executive cannot unilaterally repeal laws or effectively repeal laws by not defending them when current precedent says otherwise.

(As for your wiretapping question, FISA allows for certain instances where the wiretaps can happen before warrants are requested, and none of these instances have ever been ruled unconstitutional. The NSA was going way beyond that, and Goldsmith at the OLC got them to ratchet it down to be consistent with the Constitution and laws.)

[no limit]

62. The OLC is a get out of jail free and clear card for the president

the OLC works for the president, not the other way. This was very well demonstrated during the Bush administration. The OLC wrote such memos as torture is perfectly legal, wiretapping people without FISA approval is perfectly legal, and a host of other things.

Going back to the "duty to defend" memo which started this discussion. What basis in the law does that memo use? Is there some law that congress passed which says the government must always appeal? No? Then the OLC can simply write a new memo that says in the case of DADT, or in the case of DOMA, the white house is under no obligation to appeal. Simple as that.

Bush did this for actual crimes and then turned around and said I was just following my legal advice. And even when he decided to break that legal advice anyway nothing happened, no consequances what so ever. So don't sit here and tell that the Obama administration is forced to throw equal protection under the law under the bus and appeal this ruling because the OLC said so over 30 years ago. What a load of total horse shit. And if by some miracle they don't appeal the DADT ruling (as 21 senators asked them not to) what will your excuse be then?

[BzaDem]

63. Not only is OLC binding on the DOJ (not the other way around), but it makes perfect sense

when it says Presidents defend federal laws if there is a plausible defense under current doctrine. This is almost so obvious it shouldn't even need to be stated.

To say otherwise would give any President de facto repeal power for any law it had any reservations about. All it would take is an ideological nut filing a case with an ideological judge. Boom. Law ruled unconstitutional, because President refuses to defend or appeal.

The Constitution says Congress enacts laws, and the President enforces laws. All laws. Not just laws it likes, or doesn't find repugnant, but all laws. Surely, this is not consistent with your world, where Presidents can refuse to defend laws whenever they feel like not defending laws. The Constitution does not give the President repeal power, and it certainly doesn't give the President implicit repeal power by refusing to defend laws. It an choose not to defend laws when current precedent already rules it unconstitutional (since Courts have already ruled), and there is therefore no plausible defense, but it cannot choose not to defend laws when current precedent is either silent about, mixed about, or cuts in favor of the law (no matter how much we hate current precedent).

When McCain-Feingold was challenged in court, Bush clearly had significant Constitutional reservations about the law. But guess what? His justice department defended it vigorously. So vigorously, that it actually WON in the Supreme Court in 2003, and basically the entire campaign finance law was upheld (a surprise even to people in favor of campaign finance reform). This is despite his reservations about the Constitutionality of his law (with respect to the 1st amendment).

In your world, McCain-Feingold would have been dead the moment any lower court threw it out, despite the will of Congress in enacting the law.

Obama is appealing, and he will hopefully lose his appeal in court. The law will then be legitimately invalid, rather than invalid by executive fiat.

Your view here is not only incorrect as a matter of law, but it is dangerous. Your precedent would expand executive power FAR beyond what Bush ever did.

[no limit]

65. Where does the constitution say the president must defend all laws?

It says he must defend and uphold the constitution, not defend every law every passed by congress.

And with that the OLC could write a memo that because the president wants to defend the constitution and as a result doesnt need to appeal the DADT ruling or the DOMA ruling. Give me specifics that show this would be illegal. And even if it were it can be held up in courts for years, afterall, the president was just following the advice of his lawyers (lawyers that work for him).

And I find it laughable that you are riding this high horse about how the OLC is some shining armor in protecting our laws. Bullshit. They are used as justification for breaeking laws. As Bush did on so many occasions. As Obama continues to do when it comes to wiretapping and probably torture. Yet you are going to sit here and say that the OLC can't be used to protect the equal rights everyone in this country is entitled to? Like I said, what a load of horse shit.

[BzaDem]

67. My point is that you would be wrong EVEN IF the OLC had no memo on this subject.

The fact that the OLC has a legally binding memo on this subject just confirms what should be obvious to everyone.

The President is charged with enforcing the laws that Congress passes. Your vision would be a President that could selectively not enforce any law he doesn't like (by refusing to defend it). That is not consistent with the executive branch enforcing laws. The founders specifically did not give the President power to decide which laws he will enforce or not enforce. Your vision would be a disaster independent of the OLC memo.

[no limit]

68. You say that the president is charged with enforcing laws congress passes

that's a very noble idea. But I don't think you have any legal basis behind that idea. And if this was a president that truly followed the rule of law when it comes to everything I would agree with you. But he doesn't. So when it comes to giving everyone the equal protection under the law they deserve the president could use the OLC for good, instead of the actual covering up of crimes they are usually used for.

[BzaDem]

70. You don't believe there is any legal basis to the idea that the executive enforces laws???

:rofl:

[no limit]

73. What is this basis?

[uppityperson]

98. Executive, Judicial, legislative branches.

Legislative makes/writes laws.
Executive passes laws (makes them official).
Judicial judges/interprets the laws.

The executive "enforces" laws? Not particularly.

I haven't read my way through this entire subthread, so may miss clarification later, but just felt the need to let my fingers do the talking a bit.

[treestar]

74. No legal basis behind the Executive enforcing the law?

That's laughable. You're completely ignorant of the Constitution and anything about it. Just read it.

You're letting your emotions run away with you. This is not nearly as bad as you are making it out to be. You're saying in essence that you don't want the courts to handle any cases where it might come to a decision on the law.

[Name removed]

71. Deleted message

Message removed by moderator. Click here to review the message board rules.

[no limit]

75. And you sound like a typical demcorat too scared to fight.

the entire point of the OLC is to interpret the law. They can interpret it how they see fit.

[treestar]

77. No, the courts interpret the law

That is what the Constitution says (and only freepers cry about how the Courts have done too much in that regard, like when they upheld the civil rights laws under the commerce clause).

You are the one afraid to fight. You're afraid a higher court will decide the DOMA is unconstitutional, so it must stay at this lower court!

If this court decided that the Civil Rights laws were indeed unconstitutional, you'd be furious at the government for defending those laws too? You can't have it both ways on this.

[no limit]

82. treestar, buddy, do yourself a favor and stop wasting our time

if you aren't going to pay attention and jump in half way through a discussion simply dont.

The argument we are having is if Obama is legally obligated to appeal the court's ruling. Nothing has been shown that he is obligated to. Do you have any specifics on this or are you just trying to be annoying?

[treestar]

103. If he does not appeal it, some other circuit could still decide it

was constitutional and it would be appealed to the higher court anyway by the plaintiffs.

I'm trying to get you to learn how the rule of law works in this country and quit reacting emotionally to legal questions. If that annoys you, so be it.

Bottom line is that you don't want this issue going up higher. Why not? One district will not settle it once and for all the way the SCOTUS would.

And who do you think will make better SCOTUS appointments, Democrats or Republicans? It's almost like you want to be a victim of Obama, which is really weird if you ask me. And as if the Republicans won't block appointments of judges that are more likely to find it unconstitutional. Or MAKE appointments of more Scalias. It's really jarring. You'd rather go down in flames, just so you can be a victim here.

[BzaDem]

78. You keep bringing back the OLC, when I have repeatedly pointed out that you are wrong REGARDLESS of

what the OLC did. The OLC could be disbanded tomorrow, and you would STILL be wrong. The OLC does bind the DOJ, but you would be wrong even if that wasn't the case.

But I now see your argument. Your argument is that Bush ignored the rule of law, so we should do it too. Thank you for showing your true colors.

[no limit]

81. Is this the part where you take your ball and go home? I asked you for specifics

specifics showing why Im wrong. Where in the law is Obama legally obligated to appeal cases no matter what?

[BzaDem]

83. I will more or less quote another post of mine in another thread.

The Constitution does not allow the President to pick and choose which laws he will enforce. I.e, if President Palin takes power, she can't unilaterally stop Medicare checks. (I hope we can agree on that.)

Allowing the president to choose which laws to defend or not defend (or appeal/not appeal) based upon a subjective standard GIVES the President de facto power to subjectively pick and choose which laws he will enforce (as I described upthread). Nut plaintiff + nut judge + Republican President = selective, subjective enforcement.

Because the latter would be inconsistent with the former, the subjective discretion you are in favor of articulated in the latter statement does not exist.

Using an objective measure of a statutes' Constitutionality does not run into this problem, because it would not allow a President to refuse to defend a law (or enforce a law) just because he doesn't feel like it.

If the President uses the objective standard of "did the Supreme Court already rule this unconstitutional," or "is there Supreme Court precedent that likely invalidates this law," that is permissible. That standard is objective -- it depends only on what the Supreme Court (or circuit courts) have said, and NOT his own opinion.

For example, if the Supreme Court rules that a state law banning Miranda warnings violates the 5th amendment, and there was an equivalent federal law that was later challenged, the federal government would be completely within their rights in refusing to defend the statute, since the Supreme Court already ruled on the question. The DOJ would objectively look at case law and decide (not subjectively look at their own opinion and decide).

[no limit]

86. Again, specifics please. Where in the constitution does it say Obama must appeal this law

You keep going on about why it's the right thing to do. That's not what I'm asking you. I'm asking him where in the constitution he is legally obligated to appeal this ruling.

[BzaDem]

92. Where in the Constitution does it say that Medicare specifically is Constitutional?

Nowhere. Does the absence of a specific sentence about Medicare make it unconstitutional? Of course not.

I'm not just arguing that it is the right thing to do. I am arguing that if you take for granted that the purpose of the executive is to enforce laws (which all constitutional scholars do), you must also agree with the proposition that the President can't subjectively refuse to defend laws. Can't -- not shouldn't, but can't. It is not a one sentence quote from the Constitution -- it is a two or three sentence legal argument (just like the two or three sentence legal argument that applies the general welfare clause to the constitutionality of Medicare).

[OnyxCollie]

89. Again, you don't know what you're talking about.

The OLC claimed the "war on terror" was an actual "war" (which the AUMF's for Afghanistan and Iraq are NOT), even citing Scooter Libby to support their view.

By claiming it was a war, the President as CiC could not be hampered by the Fourth Amendment and FISA.

MEMORANDUM FOR ALBERTO R. GONZALES
COUNSEL TO THE PRESIDENT

RE: Authority for Use of Military Force To Combat Terrorist Activities Within Ihe United States

In our view, however well suited the warrant and probable cause requirements may be as
applied to criminal investigations or to other law enforcement activities, they are unsuited to the
demands of wartime and the military necessity to successfully prosecute a war against an enemy (p. 24).

[BzaDem]

90. That has NOTHING to do with what I am talking about. This was before Goldsmith, and the DOJ stopped

stopped relying on that memo in 2003 (which was before the showdown I am referring to).

[no limit]

93. I have no clue as to what you are talking about. Again, specifics.

What law forces the DOJ to appeal a courts ruling.

Why are you having such a difficult time answering such a simple question?

[BzaDem]

95. See post 92. If a three sentence argument isn't specific enough for you, I can't help you. n/t

[no limit]

96. You did not, your argument is that it is implied in the constitution that Obama must appeal

I asked where in the constitution such a thing is implied.

Medicare is a law that congress passed and a president signed in to law. There is no such law that says the department of justice must always appeal court rulings.

You are yet to give me an answer.

[BzaDem]

97. I TOLD you where.

The vesting clause implies that the President enforces laws (and no one disagrees with this, except perhaps you).

Allowing a president to subjectively decline to enforce, defend, or appeal is inconsistent with the above principle.

Is THAT simple enough for you? Do I need to draw stick figures?

[no limit]

100. Where in the vesting clauses? The constitution says the president must uphold the constitution

says nothing about him having to appeal court rulings or defending (not upholding) any law no matter what that law contains.

[OnyxCollie]

80. You have no idea what you're talking about.

Ashcroft refused to sign off on the wiretapping when he was in the hospital (and transferred authority to James Comey).

Bush signed off on the wiretapping program himself.

[BzaDem]

85. Ashcroft/Comey refused to sign off because Goldsmith refused to sign off.

Then, Bush did sign off on the wiretapping program himself (exactly as I said). Then, almost immediately after, Bush reversed his own order, after he found out that the top 5 layers of the Justice Department were about to simultaneously resign (plus the director of the FBI).

[msanthrope]

58. I recall Jack. n/t

[uncommon]

91. They are supposed to appeal - they represent the federal government - it's a federal law.

[AtomicKitten]

99. Facts?!! People don't need no stinkin' facts when they can go straight to knee-jerk hyperbole.

[DailyGrind51]

3. Log Cabin Republicans really need to change Party affiliation!

[Name removed]

35. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Statistical]

87. Outside of social issues you likely wouldn't agree with their policies.

Many LGR support free trade, lower taxes, strong military defense, privatizing social seucurity, let free market decide, etc.

They are socially liberal but fiscally conservative.

I think it is a good thing this issue transcends political parties. When you have people in both parties saying "this is wrong" that is a watershed moment.

[terrya]

10. When this gets to SCOTUS, will the DoJ defend it then?

That would be a little too much to take.

[msanthrope]

13. Duty to Defend--Office of LEgal Counsel

The Department of Justice has a duty to defend the constitutionality of anAct of Congress whenever a reasonable argument can be made in itssupport, even if the Attorney General concludes that the argument mayultimately be unsuccessful in the courts. The Attorney General’s Duty toDefend the Constitutionality of Statutes, 5 Op. Off. Legal Counsel 25(1981).

[TriMera]

16. What constitutes a "reasonable argument"? n/t

[msanthrope]

19. In this specific case, Congress found a reason for DOMA, and arguing that

it deserves rational-basis scrutiny would be a 'reasonable argument.'

In general, reasonable arguments are those that conform to general legal concepts of procedure and evidence, and have some support in the law.

[TriMera]

21. Okay, thanks for the law lesson.

But, I didn't really need it. So, you think that this Administration is bound by law to argue that gays and lesbians do not deserve equal protection under the law?

[msanthrope]

23. No--they are bound to put up enough of an argument to give Lamar Smith the shits---

Rep. Lamar Smith Is Afraid Obama's DoJ Isn't Defending DOMA Enough. So He Wants In

Rep. Lamar Smith has The Sads about the Defense of Marriage Act. He sees you radical homosexuals attacking a perfectly reasonable law, and now the the Texas Republican wants to do something about it. Like protect it!

Smith — who boasts a 0 percent HRC score and voted for a constitutional amendment banning same-sex marriage — is asking the federal U.S. District court in Boston to grant him status as an intervenor-defendant in both Massachusetts v. HHS and Gill v. Office of Personnel Management, which in July saw Judge Joseph Tauro strike down DOMA'S Section 3. Language that bans federal recognition of same-sex marriage is unconstitutional, Tauro declared.

SNIP

Except maybe they won't do it? (Hah; we could only be so lucky.) The claim from Smith and his teammates at the Alliance Defense Fund, which is orchestrating the legal maneuver, is that DoJ's defense of DOMA will be weak, or the federal attorneys will present "no defense at all." What gives Smith standing in the case? According to ADF, as an elected official it's his duty to uphold federal law, so getting involved only makes sense.

Not that Gay & Lesbian Advocates & Defenders, which brought Gill v. OPM to court, is sweating it: Mary Bonauto, the org's civil rights director, says "ADF tries to intervene in everything. We’re just surprised it took this long." And she plans to fight their involvement.



Read more: http://www.queerty.com/rep-lamar-smith-is-afraid-obamas-doj-isnt-defending-doma-enough-so-he-wants-in-20101007/#ixzz12BfK31Gi

[TriMera]

25. Thank you...

for a very reasonable response to my question. I still disagree, but it does give me another point of view to ponder.:)

[msanthrope]

32. I want to give yu a bit of hope--here's from the DADT ruling today--

Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act. This evidence, discussed in Section IV(C)(1) above, does not suffice to show the Act's restrictions on speech are "no more than is reasonably necessary" to achieve the goals of military readiness and unit cohesion. (See supra Section IV(C)(1).) Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 85 of 86 Page ID #:7701

http://www.scribd.com/doc/39202813/LCR-v-USA-Amended-Final-Memorandum-Opinion

[Zenlitened]

56. .

[glitch]

18. Lots of wiggle room in "whenever a reasonable argument can be made in its support"

Exactly what is the reasonable argument for continuing to appeal here?

[msanthrope]

20. That a rational basis can be found to support the enactment of DOMA. n/t

[JustinL]

60. what rational basis would that be?

Judge Tauro already ruled that there was no rational basis for DOMA:

In sum, this court is soundly convinced, based on the foregoing analysis, that the
government’s proffered rationales, past and current, are without “footing in the realities of the
subject addressed by (DOMA).” And “when the proffered rationales for a law are clearly and
manifestly implausible, a reviewing court may infer that animus is the only explicable basis.
animus alone cannot constitute a legitimate government interest,” this court finds
that DOMA lacks a rational basis to support it.

...To further divide the class of married individuals into those
with spouses of the same sex and those with spouses of the opposite sex is to create a distinction
without meaning. And where, as here, “there is no reason to believe that the disadvantaged class
is different, in relevant respects” from a similarly situated class, this court may conclude that it is
only irrational prejudice that motivates the challenged classification. As irrational prejudice
plainly never constitutes a legitimate government interest, this court must hold that Section 3 of
DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth
Amendment to the United States Constitution.

Can you point out where the judge erred in his reasoning?

(Edited to add quote from ruling.)

[msanthrope]

64. I don't disagree with the judge.

I don't find his reasoning to be in error.

But that doesn't mean that a reasonable argument cannot be made to defend DOMA.

Now, ultimately, I think the public airing of those 'reasonable arguments' will, as the judge noted, reveal the actual animus behind them....and that's the only way you get the cat out of the bag.

The courts have a very important function that often goes unappreciated--the public airing of the consequences of legislation, and the motivations of those who made the laws...

[JustinL]

102. what exactly does "reasonable" mean then?

The phrase "reasonable argument" implies that not all arguments are reasonable. If it is reasonable to persist in arguing that Congress had a rational basis for enacting DOMA when it in fact had no such rational basis, then what isn't reasonable? Can you give an example of an unreasonable argument?

[treestar]

72. If they did not, then the SCOTUS would not decide it

And the question would be left up in the air, or come to different conclusions in different circuits.

Had this state decided DOMA WAS constitutional, then why shouldn't it be appealed? IOW, why are you sure that the challenging party will lose and the government will win the question in the highest court?

[Statistical]

88. Yes. Our legal system is based on the advesarial process.

Even the vilest criminal deserves the best legal defense available.

Both sides putting forth the best arguments possible in a court of law. That is how our system works. If the Executive could "not defend" an issue then it undermines the independence of the Judiciary.

The lawyer arguing the defense doesn't have to agree with it but he is duty bound to provide the best defense possible.

[VMI Dem]

11. Shocking.

[HughMoran]

15. Good.

This has to be done to legitimize the decision - otherwise it will be challenged ad infinitum.

[no limit]

29. I'm sure all the people that lose their jobs in the mean time will be just as happy as you are

[HughMoran]

33. Snarky smugness won't change a law that's been in effect for over a decade

Happy? no, but I'm not smug.

[no limit]

42. Neither will makin lame excuses for the people that are trying their best to keep this law in effect

Nothing legally obligates this administration to appeal this. Just as nothing legally obligates them from dropping banning DADT in the latest defense authorization bill. But they chose to fuck us over on both. Funny how that works.

[GodlessBiker]

101. +1,000

[JuniperLea]

36. We do indeed need a permanent end to this...

The whole mess is getting so ugly. If this is what it takes, I would think showing support would be the right thing to do.

[Owl]

37. Agreed. This is the Obama administrations way of doing away with DADT. Smart move.

[Lucy Goosey]

17. DOMA, DADT, the Florida adoption ban...

Are the tides finally shifting? I certainly hope so.

[Starry Messenger]

31. Crap.

Today was the deadline too, I've heard. Nice they are so Johnny on the spot. I guess that explains the tone deaf press release too.

[no limit]

43. It's 6 dimensional chess, you just need to get it.

[Unvanguard]

57. This is undoubtedly what GLAD wanted them to do.

This is a case brought with the specific intent of striking down DOMA. If you are pessimistic about its prospects (I was at the time, though a little more hopeful now), it makes sense to want it to stop in MA: better something than nothing. But it was filed because those filing it thought it had a good chance of national success; they will get their chance now.

What should be watched, in terms of weighing the obligation to defend federal law against the necessity of ending immoral and unconstitutional legal discrimination against gay people, is the DADT case, where there is a nationwide injunction that will simply stand if the DOJ doesn't appeal.

[cap]

66. not too worried...

if the government loses, it's more precedent.

I think Obama administration files "strategic loss" law suits in order to strengthen case law. They don't seem to actually win cases that enhance right wing agenda.