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“If I hear ‘not allowed’ much oftener,” said Sam, “I’m going to get angry.” -- J.R.R. Tolkien, from Lord of the Rings

Friday, February 25, 2011

More on DOMA

Dahlia Lithwick has an excellent commentary at Slate on the ramifications of AG Holder's statement and letter to Congress on DOMA.

Attorney General Eric Holder's letter to Congress said the Obama administration would no longer defend Section 3—and only Section 3—of DOMA in New York and Connecticut because it violates the equal-protection clause of the Fifth Amendment, as applied to same-sex couples. Last July, a federal judge in Massachusetts declared DOMA unconstitutional, because it denied federal benefits to legally married same-sex couples in the state. The Obama administration appealed that decision in January, much to the dismay of gay-marriage supporters, who argued that fighting to uphold a discriminatory law in the courts was proof of the administration's ongoing hostility to gay rights. References in government briefs to "uncles marrying nieces" weren't helping.

Section 3 provides that "in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." From now on, explained Holder, the administration will continue to enforce DOMA—but it won't defend it, because it doesn't pass the heightened standard of scrutiny it should receive in the courts.

I'd just like to add to this something that I haven't seen anyone else note: As a strategic move, this is brilliant. Obama has just moved the goalposts to a place where the Perkins/Gallagher crowd will never find them. Do I think this is evidence of a "grand strategy"? No. Obama is an opportunist as much as a long-range planner. I have no opinion on whether he ever intended to do anything about DOMA as things stood a year ago. Now, however, the cracks in the defense of that abomination are too big to ignore, and with one stroke he's taken the wind out of the sails of Gallagher, Perkins, and their ilk. Lithwick notes:

Virtually all of the arguments advanced to deny gay couples the right to marry are based on moral animus and junk science, rooted in discredited cases like Bowers v. Hardwick and in unfounded bias that is increasingly hard to defend in open court. As professor Suzanne Goldberg of Columbia Law School put it today: "This is a spectacular and long-awaited acknowledgment by the federal government that there is no good reason for treating gay and nongay people differently, especially when it comes to recognizing the relationships of same-sex couples." The main consequence of today's decision is that the people who actually believe in Bowers v. Hardwick, moral animus, and junk science will get to defend it in court, if they can. The president no longer has to.

We've seen how well that works in Perry vs. Schwarzenegger -- as David Boies pointed out to Tony Perkins, the witness stand is a lonely place to lie.

Yes, please, get Virginia Foxx and Steve King to defend DOMA and see how far you get. I can hardly wait.

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