Right on the head:
The Supreme Court’s order included no explanation, so it’s sensible to look for that in the Justice Department filing that urged the court to rule as it did. Repeatedly, it mentioned repeal of the law by Congress and the process under way in the executive branch laying the groundwork for that. It said the wrong way to overturn the law is by “judicial invalidation” and the right way is by “repeal of an act of Congress by Congress itself.”
Sometimes the courts have to act when Congress lacks the sense or the courage to do so. The Senate could have joined the House in repealing the antigay law in September. It did not. Given the sharp rightward turn of Congress in the elections, how can the Justice Department now make that argument with a straight face?
This whole idea that there is a "right way" and a "wrong way" to overturn an unconstitutional law is ludicrous. It sounds like the DoJ has bought into the right wing's "will of the people" mantra -- of course, the will of the people is only valid as long as "the people" can be stampeded by scare campaigns. Does anyone remember how the "activist judges flouting the will of the people" became "elite legislators flouting the will of the people" (who had elected those legislators, you will recall) when Massachusetts refused to pass a constitutional amendment outlawing same-sex marriage? The same sort of thinking seems to be going on in the DoJ -- and do keep in mind that it's still Bush's Justice Department, staffed by political appointees that he shuffled into civil service positions in his last few weeks in office. And Holder doesn't have the sense to isolate them.