The Observation Deck

The Obama administration has decided that the U.S. will no longer defend the Defense of Marriage Act in court. This is sure to set some people into a tizzy.

http://online.wsj.com/article/SB1000142 ... 08626.html

The Obama administration said Wednesday that it would not defend the constitutionality of a 1996 federal law that defines marriage as the union of a man and woman, after two years making the opposite argument.

The legal turnabout marks a contrast with the Justice Department's position in recent years that it generally is obligated to defend federal laws, even when the administration opposes them.

The administration made that assertion in defending the law that previously banned openly gay people from serving in the U.S. military. Congress has since repealed the "don't ask, don't tell" law.

President Barack Obama decided to stop defending the marriage law after considering "a number of factors, including a documented history of discrimination," the Justice Department said.

When the DOMA law is ruled unconstitutional, it will certainly set up an interesting situation for states and Federal government being required to recognize the valid marriages of other states.

These are certainly intriguing times.

Only a matter of time... Looks like we are slowly moving toward 2011...

I would have no problem with congress repealing the law as that is what the political process is all about.

I do have a problem with a President (and Obama is not the first to do this) deciding that, since the political process would be too much work, or that he is not likely to succeed in the political process, arbitrarily declining to enforce the law.

Some may see this as a victory, but to me it is a weakening of the checks and balances built into the constitution. Would we like a system where a President, concluding that too many minorities, are being convicted of drug crimes, decided not to prosecute minorities?

Hey. it worked for getting rid of the Indians. all those treaties not worth enforcing. Pioneers don't like treaties. and the settlers who become industrialists don't want to pay taxes.

once gays start getting married gays will start getting divorced.
this is extra legal work for lawyers. lawyers dig extra work.

I would not worry too much Will. I do not think Oboma being out front on this issure (or years behind) is going to chip away at the rule of law. We have had plenty of that in recent years and this is not going to push us over the edge. also i bet the DOJ has better things to do than enforce the doma.

Sometimes the executive branch needs to step out in front when the legislative branch isn't living into the principles of the Constitution...

Good example, Abraham Lincoln emancipating the slaves without congressional approval.

I'm sure some conservatives would laud the tactics Bush II took in the "war on terror" that also either didn't ask for or ignored congressional oversight.

And Obama isn't refusing to enforce the law, that's his job, what he is doing is refusing to defend an innately hateful and prejudicial law in court. But until the law is struck down, his administration is continuing to enforce it's provisions in the Federal government.

The executive branch stepping up and creating its own law is common in dictatorships; it has no place in a democratic republic. The executive can, of course, advocate for change, but he has no power to enforce change, through action or inaction, until he can get the law changed by the congress.

Lincoln did, of course take many liberties with the constitution, but was within his power as commander in chief to conduct the war, and declaring free the slaves in the rebel states was very defensible as part of that conduct. Pretty much can be said of Bush's conduct of his wars, whether you like him or not.

I think you confuse yourself in asserting that refusing to defend the law in court isn't refusing to enforce the law.

Will Brown wrote:I think you confuse yourself in asserting that refusing to defend the law in court isn't refusing to enforce the law.

It's not the same. I think you're confusing yourself into thinking it is.

Will your worried about this when all those banking thieves, who robbed us blind, are still fatcats?

Where's the rule of law there?

What about the rule of law when there continues to be a double standard in the courts towards women, i.e. sexual harassment and discrimination cases. The judges consistently protect big corporate entities and the heck with the women who have been abused.

Also, Constitutionally, the Executive Branch is only required to enforce the laws Congress passes, which Obama still is (look at the recent IRS and Justice Department announcements on continuing to enforce DOMA as an example). The Executive Branch is under no obligation in the Constitution to defend laws in court, especially ones that are blatantly uncononstitutional.

Congress is free to defend the cases in court themselves if they truly believe in the constitutionality of the law that they passed.

I mean if we're all about "strict" reading of the Constitution without in anyway interpreting the intention of the founders, there you have it. There is no Constitutional mandate for the Executive Branch to defend a law in court, only to enforce it until its ruled unconstitutional.

You can't have your cake and eat it too.