And forward march. I think it goes without saying that Eric Holder's announcement about DOMA caught everyone by surprise. The reactions have been many and varied.
First, Holder's statement:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.
Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
There's been a lot of sloppy commentary (not to mention reporting) on this, but it's very clear that the DoJ is not refusing to defend DOMA in all cases -- this is limited to two cases in the Second Circuit, where there's a good chance the court will use a heightened scrutiny standard anyway, under which DOMA is most likely toast.
DoJ is also inviting Congress to step in to defend the law. My own feeling is that this is a minefield for Boehner. There's going to be immense pressure from the usual suspects to join these cases, but any such defense has already been weakened by what amounts to the recommendation from the administration for heightened scrutiny, plus the flat-out admission that the law cannot pass constitutional muster under that standard. (There's also Judge Vaughn Walker's finding that such laws -- in that case, Prop 8 -- can't even pass muster under rational basis, if the Second Circuit wants to consider that.)
From the professionals, we have a comment by Jason Mazzone at Balkinization that essentially reinforces what I just noted above out the administration's commitment to defend the law. Jack Balkin has a comment on the political ramifications of this announcements -- in the broad sense of providing political cover to the courts.
Orin Kerr at Volokh betrays his right-wing bias by calling this announcement a "power grab," and to be quite honest, I don't see his rationale at all. Ilya Somin gives some strong push-back, and needless to say, I agree with Somin's reasoning. Kerr also notes a response by Walter Dellinger, who noted this piece on DADT that answers many of Kerr's arguments.
Ari Ezra Waldman has a very helpful analysis at Towleroad, somewhat more in layman's terms.
One thing that strikes me in these discussions -- not to mention the comments there and in any number of other reports and commentaries -- is the confusion between the administration's duty to enforce the law and its decision not to defend the law against constitutional challenge. John Aravosis and Joe Sudbay, both of whom are lawyers, pointed out long ago that the administration is under no formal requirement for the latter (remember that judicial review was not a Constitutional provision, but established by Marbury vs, Madison); the former is part of its duties under the Constitution, although on a reading of Article II, that requirement is nowhere specifically stated, but rather assumed as part of the duties of the "executive." And Holder has stated quite plainly that the administration will continue to enforce DOMA until it is either repealed or the courts make a final determination.
There's also a lot of speculation about Obama's personal position on same-sex marriage (see this piece from Greg Sargent) which I think it completely beside the point, and very revealing of how we've lost the ability to see the difference between an official's personal feelings and his responsibility to execute his responsibilities (something that all too many of our public officials have lost sight of, as well). This is simply a matter of Obama acting like an adult, and doing his job regardless of his personal feelings (although it's obvious in broad, theoretical terms that he supports gay civil rights).
At the other end of the spectrum, Box Turtle Bulletin has a summary of the professional homophobes' reactions to having been cut off at the knees -- you can practically see the foam flying). I'm not going to quote any of them -- even if you don't read them, you can probably guess the content pretty accurately -- but I will not that the hysteria is at unprecedented levels. John Boehner, who has been handed a poison pill, punts:
A spokesman for House Speaker John Boehner, R-Ohio, criticized the administration change of position. “While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,” said spokesman Brendan Buck.
This from a Speaker whose party is concentrating very heavily on throwing more people out of work -- unless they can get jobs as womb police.
The WTF? moment comes from Mike "Aw, shucks!" Huckabee:
"I'm deeply disappointed," Huckabee said. "They are clearly out of sync with the public." Huckabee noted that 33 states have affirmed, via ballot initiatives, that marriage should be between a man and a woman. "When the voters are so overwhelmingly [supportive of DOMA] what does the president believe he knows that citizens in all these other states don't," Huckabee said. Huckabee opposes gay marriage on the grounds that, according to him, it destroys traditional families. "There is a quantified impact of broken families," Huckabee said. "[There is a] $300 billion dad deficit in America every year...that's the amount of money that we spend as taxpayers to pick up the pieces because dads are derelict in their duties."
Point one: the only thing that 33 states affirming Huckabee's definition of marriage proves is that a well-funded, religiously based scare campaign founded on lies and misrepresentations can frighten people enough to get them to the polls. Point two: what the hell do same-sex marriage and deadbeat dads have to do with each other? Can someone explain that? My grasp of wingnut psychology isn't strong enough to untangle that mess.
If you can stand it, here's a nice fact-free segment from Fox, complete with amazed outrage from the host -- is that Megyn Kelly? These Fox bimbos all look alike to me -- and a full load of bullshit from Maggie Gallagher.
The thought that so many people are getting their information from Fox is scary. It explains a lot, though -- like the current Congress.
Update:
As an antidote to the Megyn Kelly-Maggie Gallagher bitch-fest, here's Rachel Maddow with Tobias Wolff -- a nice, rational discussion of the ramifications of this announcement:
And here's Lawrence O'Donnell giving some air time to Glenn Greenwald:
I'm sure this will play out over time -- it's going to be interesting to see how the Second Circuit reacts.
Update II: Timothy Kincaid has very helpful summary and analysis at this point, which is much more complex than I had realized. Worth a read.
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