WH: "The president remains strongly committed to signing a legislative repeal of DOMA into law"

[AlexanderProgressive]

From Today's Wall Street Journal (excerpt), we are explained that a recent filing in court is not to interfere with President Obama's promise to seek repeal of the Defense of Marriage Act in congress:

On Friday, the Obama administration filed a brief seeking to dismiss a lawsuit filed by Arthur Smelt and Christopher Hammer, a California couple married during the brief period when gay marriage was legal in the state, who are challenging the 1996 federal act.

The letter Monday from Human Rights Campaign President Joe Solmonese included a detailed critique of the administration's filing. "This brief would not have seen the light of day if someone in your administration who truly recognized our humanity and equality had weighed in with you," he wrote.

A Justice Department spokeswoman said in a statement that the department was following routine in the filing, and wasn't making a policy statement. "As it generally does with existing statutes, the Justice Department is defending the law on the books in court," said Tracy Schmaler. "Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."

In a statement, White House spokesman Shin Inouye said it has already begun working to help gay and lesbian Americans achieve equal rights. "The president remains strongly committed to signing a legislative repeal of DOMA into law," he said.

http://online.wsj.com/article/SB124511150294217147.html

[bluestateguy]

1. Which the votes are not there for

If someone knows otherwise, please do tell.

[Thrill]

5. I think people are going to be surprised

how many Democrats vote against DOMA, DADT, and FOCA. The same ones against a public option for healthcare. I think Obama knows it.

[vaberella]

36. No, you're right. Most here don't want to think about it or know it.

They think O can ram rod through things like Bush or Cheney.

[zulchzulu]

38. It would be close... and perhaps not get passed...

With the 2010 elections coming up, I think some Democrats up for re-election would back down... unfortunately.

[ChimpersMcSmirkers]

81. I think you're right and I think that it won't be until after the 2010 election

before any action is taken.

[Clio the Leo]

2. and that should end the argument right there...

... but it wont.

[Seen the light]

4. Why?

Do you consider words to be more important than actions? I don't wish to debate what Obama will ultimately do on the issue, but someone in the administration repeating the official line doesn't end anything. This is old news, we've all heard this before.

[merh]

7. Civics 101

The Legislative branch writes the law, the Executive branch enforces the law and the Judicial branch interprets the law.

[bigjohn16]

8. And yet the buck still stops with the President.

Civics can't help the President when something indefensible was done on his watch.

[merh]

11. The DOJ was doing its job.

The DOJ was doing what it was created to do, represent the USA in litigation filed against it.

All laws passed by congress and signed into law by the president are deemed constitutional until the courts rule that they are unconstitutional.

Here are some posts to consider
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=5842564&mesg_id=5853327

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8468339&mesg_id=8473625

I could give you links to more posts with reasoned discussion but I get the impression it is not rational debate or reasoned discussion you are after.

[Tarheel_Dem]

12. THANK YOU! Lots of baseless screeching on DU lately. Thanks for this post!

:toast: :applause: :toast:

[bigjohn16]

13. He's been hurt in the GLBT community by this.

You can rationalize it all you want but it was offensive to many people including myself. It saddens me that anyone on DU would not be sickened by the language of that brief but I guess it's a whole new world now. I'll tell my gay friends to read a Civics 101 book I hope it makes them feel better.

[merh]

16. He has been hurt by it because LGBT lawyers are being

dishonest in their characterization of the DOJ's responsibilities and Obama's control over the DOJ.

Bush controlled the DOJ, Bush politicized it and that is why so many abuses and crimes were committed in our name. Civil Rights cases were not filed by the DOJ under Bush, political prisoners are still in jail because Bush made the DOJ his law firm. I don't want Obama to continue that practice.

The AG is to advise the president, not be his flunky. The AG wears two hats, one is as an adviser to the president and the other is as the head of the DOJ. The DOJ is statutorily obligated to defend the laws passed by congress until such time as the laws have been found to be unconstitutional by a court.

The Constitution requires that the President uphold and enforce the laws as passed by congress. It is how our government works.

You want to be mad at a president, be mad at Clinton for signing DOMA into law and for not vetoing it or writing a signing statement saying it was unconstitutional.

Be mad at Richard Socarides, the Special Assistant to Clinton and his adviser for gay and lesbian issues. I mean come on, Socarides should have prevented Clinton from signing DOMA, I mean you all give such power to the DOJ attorneys. Sorcarides is one of the many who has been dishonest in his characterization of the Smelt brief.

You see, this Smelt case is not the first Smelt case. It was originally filed in 2000 and has been briefed and litigated, appealed and briefed again. The sad thing is, the LGBT community is just now giving it attention.

[bigjohn16]

19. It was on the watch of President Obama that the brief was filed.

The statement that the GLBT community is just now giving it attention or that it's just some dishonest gay lawyers is offensive they took offense to being compared to pedophiles and incest, hard to believe I know. None of the thing you stated will change the fact that people were offended, they're associating the President with the brief, and the fierce advocate will have to address the issue or he could pay a political price. I've said the same things to many times so I'm going to move on. Thanks

[merh]

20. You didn't read the links did you.

People were offended because that was what the authors of the articles wanted them to be, offended. They mischaracterized the duties of the DOJ and the authority of the president and they played you. They played on your emotions and they inflamed you.

That Smelt filing is not new, the arguments are not new. Shame on the authors for just now paying attention to Smelt and Hammer. Shame on them for not asking that folks support their legal efforts since they have been fighting this since 2000.

The cases were not cited to compare gays to pedophiles and incest. That is a bigoted interpretation by the authors, not the brief writer. The sad thing is, some of the most vocal that have spurred this on are lawyers. Its a shame they don't know the law.

The number one thing you and others tend to overlook as you complain of the "tone" of the DOJ brief is history - the history of our society.

For years under aged women, minor females, were allowed to marry. It was a part of the the culture in many states, society not only accepted it, they expected it. My grandmother was 14 when she lawfully married my 21 year old grandfather. Grandfather was not a pedophile, he was no pervert, he was no criminal. Now, the state they were married in has a law that says under 18 needs parental consent, under 16 needs court order. Society changed, the culture changed and evolved and the state laws changed to reflect the change.

The case cited in the brief that critics label as "comparing homosexal marriage to pedophilia" did not deal with pedophilia, it dealt with one state recognizing or not recognizing the lawful marriage performed in another state.

Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) held that the marriage of 16-year-old female was invalid in New Jersey, regardless of validity of the 16 year old female's lawful marriage in Indiana. Indiana allowed 16 year olds to marry. New Jersey law allowed for an adult female to have her marriage annulled if she married at the age of 16.

There are some cultures to this day that allow and encourage marriages between relatives to keep the "blood line pure". The cases discussing marriage to relatives were not about incest, they were about one state not recognizing the lawful marriage of another state (or one state not sanctifying the cultural practice as enjoyed by persons of that culture).

Apparently, in 1957 New Mexico allowed first cousins to marry. Arizona did not. In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").

In 1961, Italy allowed an uncle to marry his niece. Connecticut didn't recognize the marriage. Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th state".

DOMA is federal statute that says states have the right to pass laws that either restrict or allow marriages as the states deem appropriate. Thus, the cases cited were on point - they were legitimate legal argument supporting the contention that one state has refused to recognize the marriage performed in another state.

And since you are so damned concerned about Civil Rights filings tell me how many suits are pending that deal with DOMA? How many have been filed that deal with Civil Rights violations?

Take the time to send a thank you note to Smelt and Hammer, consider donating to their legal defense fund. Protest DOMA, argue against it using the facts and your wits, not with emotions and distortions.

[grantcart]

57. I appreciate your careful explanation of the facts and the law of these cases.

[merh]

58. I forgot to point out in that post that the

definition of incest is sexual intercourse between persons so closely related that they are forbidden by law to marry; also: the statutory crime of such a relationship . Since the cases cited dealt with marriages of relatives that were lawful in one state or nation and not recognized in another state, incest isn't even an issue. The bigoted comments are those made by the people incorrectly portraying the argument made.

[dsc]

27. I guess they should have put that in their brief too

that gays are all liars who can't be trusted. The simple fact is that no one, no law and no person, forced them to put the strict scrutiny standard in that brief. To say they had to do that is a lie.

[merh]

43. That is not what I said.

You miss the truths, you don't want to realize them. I understand the emotions, I've understood the emotions involved in lawsuits and prosecutions, civil rights fights and struggles for a very long time. You don't ignore them, you hold the emotions and own them, but you don't let them get in your way. To fight the smart fight, to fight the effective fight, to fight to win you become informed.

The DOJ used the same arguments it used when the first case was litigated and appealed to the 9th Circuit, when the DOJ defended DOMA in 2000 to 2008. Did you realize that? Did you even know about the 9th circuit appeal and the district court case that lead up to the appeal? Did you ignore that case? Here is a link to Smelt's brief in the 9th circuit go read it and see that the strict scrutiny issue is not new.
http://74.125.47.132/search?q=cache:6dWMNwjjNHYJ:www.domawatch.org/cases/9thcircuit/Ninth%2520Circuit/Aplnts_Brf.pdf+strict+scrutiny+smelt&cd=2&hl=en&ct=clnk&gl=us

[Bluenorthwest]

50. Yeah. Our lawyers are lying to us

but Donnie McClurkin's booking agent is not.
Obama promised to lead on DOMA. He's not leading at all. That is the whole of it. Words are cheap. So these words are useless. Obama has claimed in the past to fully support marriage equality. Then he said he opposes it. People who change their positions willy nilly can not be trusted when they speak mere words.
He said he'd lead. He's not leading. The end.

[merh]

52. Go read

this post of "examples"
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8468339&mesg_id=8471281

Then read the post in response that provides the truth about the cases cited.
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8468339&mesg_id=8473625

It is obvious the lawyers responsible for this blog article and all of its updates are not being honest, they have distorted the truth.

[Canuckistanian]

29. Then by that reasoning, Holder is the villain here

Can Holder not invalidate the brief by saying that it doesn't reflect the current DOJ's opinions?

Everyone knows that laws can be bent one way or another - either over-prosecuted or under-prosecuted. Holder's DOJ seemed to go for the former.

[merh]

40. NO - Holder as the head of the DOJ, per the statute that created his

office and the DOJ is required to defend the USofA when it is sued, when it is named as a defendant in a lawsuit. He must defend, the DOJ must defend the laws passed by congress as said laws are deemed constitutional until a court rules they are unconstitutional. The executive branch, the president, AG, DOJ, FBI, enforces the laws that are written by congress until the laws are interrupted to be unconstitutional by a court of law.

The DOJ moved to dismiss the lawsuit, that is litigating the case, that is what they are statutorily obligated to do. Ethically, they are required to represent their client to the best of their ability. They used legal arguments that have been twisted by some as bigoted, but those arguments are valid legal arguments and for Smelt & Hammer, they are not new arguments - this all has been briefed and argued before so I would bet that language is recycled, it worked for the DOJ once before so they used it again.

Holder can swear on his oath, can put up a bill board, can have it tattooed on his ass that DOMA is unconstitutional and that means JACK SHIT - it would have no more power than when I say it and when you say it. Holder cannot rule a law unconstitutional, that is beyond his authority, his power. Only the courts have the power to overturn a law, to find it unconstitutional and unenforceable.

[Canuckistanian]

45. You make it sound as if the DOJ has it's hands completely tied

Must everything they argue be constrained to previous precedents? Is there no wiggle room whatsoever for societal progress?

[merh]

48. They have their hands tied by the law, yes.

They are obligated by statute and ethics to defend this case. I suppose they could try to settle it but they have no power to offer the settlement the Plaintiffs would require. This suit is brought to get a court of law to rule that DOMA is unconstitutional and that is beyond the DOJ's authority or power. If the DOJ said "its unconstitutional" that statement or opinion has no power because only the courts can find a law unconstitutional. By law, all laws are constitutional until the courts hold otherwise.

[Boomerang Diddle]

23. Not those who are thinking for themselves

and not letting themselves be misguided by reactionary blogs and other internet hype.

[bigjohn16]

24. I love the smell of condescension in the morning. nt

[Boomerang Diddle]

25. That's nice.

:+

[Odin2005]

35. The executive is not required to defend an unconstitutional law.

[merh]

41. Only when the law is deemed unconstitutional by a court of law.

The executive branch cannot deem a law unconstitutional, that is beyond the powers of the executive branch.

[Odin2005]

60. IIRC the Executive can refuse to execute a statute. Or does that only apply to appropriations?

If the executive refuses to execute a law, thus implying it is unconstitutional IIRC it can be challenged it court, forcing the judicial branch to either agree with the executive or declare the law constitutional and compel the executive to execute the law.

[merh]

61. Provide an example please.

[Odin2005]

65. Can't think of one, I'm no law professor or lawyer.

I was just thinking. :shrug:

[alcibiades_mystery]

42. If you are seeking to dismantle the Imperial Presidency

The first thing you have to do is come to terms with the idea that decisions about the constitutionality of a law are best left to the judiciary. Even and especially where your first instinct is to declare a state of affairs by fiat, or sovereign exception.

[sisters6]

71. Not asking him to do that at all. Just over-ride it on a temporary

basis--which you know he CAN do.

[Neecy]

66. bull.

The DoJ didn't have to include such harmful, insulting, bigoted language.

[merh]

72. The language was not what it has been portrayed as being.

It was legitimate legal argument and it wasn't new. It was the same argument used in the Smelt & Hammer v. USA case - check out the brief filed in August of 2005.
http://74.125.47.132/search?q=cache:6dWMNwjjNHYJ:www.domawatch.org/cases/9thcircuit/Ninth%2520Circuit/Aplnts_Brf.pdf+strict+scrutiny+smelt&cd=2&hl=en&ct=clnk&gl=us

Why didn't the argument bother you then? Oh, don't tell me, you've never heard of Arthur Smelt and Christopher Hammer. This is all new to you.

Shame, all this upset about case that has been ongoing for years and not a word of gratitude or concern for the men who have been battling this.

Here are some links for you to consider: post 20 in this thread
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8473626&mesg_id=8473711

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8468339&mesg_id=8473625

[ChimpersMcSmirkers]

82. That's funny I don't remember Obama signing DADT or DOMA.

Also, his watch hasn't ended so just because he hasn't acted doesn't mean he won't.

[rateyes]

30. Yes, the Executive Branch enforces the laws, BUT nothing says

the executive branch has to DEFEND a law in court. The executive could very well have sent a brief explaining why they think the law is unconstitutional.

[merh]

44. The DOJ must

That is why the DOJ was created, to defend the USA in lawsuits, to defend the laws passed by congress. It is not the executive branch's role to determine what law is constitutional or unconstitutional, that is the court's role. All laws passed by congress and signed into law by the president are deemed constitutional until a court finds them unconstitutional.

[rateyes]

46. Yes, and the DOJ cuts deals all the time. And, it's not just there to

DEFEND lawsuits. It's there to PROSECUTE alleged criminals. They aren't doing that job very well, right now, either.

[merh]

47. What is really sad is

You are offended about not going after criminals that did the same thing you expect Obama to do, violate the laws and the constitution by not upholding the laws and the treaties. Sure, bushco did it, he needs to be tried, but obama should do it too.

[rateyes]

62. What I expect the DOJ to do is their job. They need to prosecute

war criminals, and they need to file briefs asking the court to overturn unjust laws like DOMA. But, Obama won't ask them to do that because, first of all, he AGREES with DOMA. He has stated more than once that "marriage should be between a man and a woman," as has his Secretary of State.

[merh]

63. It is not their job to call laws unjust.

It is not their job to declare laws unconstitutional.

Bush's DOJ declared the laws against torture, the GC, unlawful as they infringed on his presidential authority during wartime, as they prevented the CnC from conducting his war.

So you want the DOJ now, under Obama, to do the same thing - decide the laws themselves, to violate their statutorial and constitutional duties and to go beyond their authority.

[rateyes]

67. No, I expect them to enforce the law.

But, when they believe a law to be unconstitutional, they should ask the courts to overturn that law. They don't have to DEFEND it. Enforce the law until it is overturned, but try to get the damned thing overturned.

[merh]

70. No, they do have to defend it.

Their personal opinions are not the law. The law is deemed constitutional until the courts rule it is unconstitutional.

[Clio the Leo]

33. Well, I was wrong....

... because I forgot there are two arguments re: this matter.

There's the "Obama's not getting things done fast enough" argument which I think is a matter worthy of debate.

Then there's the "Obama lied to us and doesnt care about us and will do nothing to help us" argument which is complete and utter BS and is a waste of everyone's time and energy. THAT is the argument to which I was speaking.

I think it's unfortunate that we spend so much time arguing with one another here when that time and energy could be better spent helping to make sure those on the right of the issue understand the President has a mandate to speed up the pace of the first argument.

[Clio the Leo]

32. *

[SunsetDreams]

3. K&R Key Quotes:

"Until Congress passes legislation repealing the law,"

"The president remains strongly committed to signing a legislative repeal of DOMA into law"

sadly there will still be something wrong with that.

[jgraz]

14. Except for the part where it's just a bunch of empty rhetoric, it's perfect.

Translation: "Not my problem. Now shut the hell up."

[Boomerang Diddle]

22. He's damned if he does and damned if he doesn't.

If Obama doesn't comment every time DOMA is mentioned the angry left cries about his "silence," but if he reaffirms is opposition to DOMA, then suddenly it's nothing but "empty rhetoric."

[Orsino]

28. Well, he doesn't.

His oft-repeated claim to believe that marriage ought to be between a man and a woman rather undercuts his claim to oppose DOMA. It's too nuanced a position, and has never been explained in any detail.

He's damned if he does, and damned if he doesn't, all right--because he both does and doesn't.

[jgraz]

54. Exactly.

[Proud Liberal Dem]

31. Right!

and he can't sign legislation repealing DOMA unless he has legislation in front of him to sign. He can't magically make legislation appear either. Somebody in Congress is going to have to exhibit the courage to introduce/sponsor legislation to repeal it. However, unlike DADT, DOMA is realistically probably not going to be repealed anytime real soon although its continued existence is NOT going to stop states from legalizing same-sex marriage. DOMA only addresses the recognition of same-sex marriage by states whom have not legalized it (which SHOULD, theoretically, fly in the face of the "Full Faith & Credit Clause" in the US Constitution in the first place) but DOMA does not prohibit states from legalizing same-sex marriage AFAIK. I personally believe that as more and more states legalize same-sex marriage and people realize that the "sky is NOT falling", there will be even more states that legalize same-sex marriage, as well as an even greater impetus to do away with laws such as DOMA, particularly when states and local communities have to start dealing with the inevitable litigation that will arise from the logistical problems caused by married gays and lesbians moving around the country, specifically trying to get states whom have not legalized gay marriage to recognize marriages performed in states whom have legalized it. Despite what the RW -and some of the hack lawyers at DOJ- would have us believe, the avalanche towards full equality for GLBT citizens, has started and it's too late "for the pebbles to vote". It's just a matter of time.

[jberryhill]

34. "DOMA does not prohibit states from legalizing same-sex marriage AFAIK"

You are correct. The flip side of DOMA is that it implicitly recognizes that states can and will legalize marriage equality. From that perspective, DOMA is something of the camel's nose poking into the tent.

The softest point of attack is that since the federal government has no business defining marriage, and state laws differ, then any lawful marriage in a state should be recognized for the purpose of federal status (e.g. tax, social security).

[Proud Liberal Dem]

37. Wingnuts saw state-by-state legalization coming

Which was why they tried to get in front of it with DOMA and the spate of state anti-gay marriage laws and constitutional amendments we have seen being enacted by several states in recent years. Amazingly, despite of their efforts, the wingnuts never even got their FMA through Congress even though they controlled Congress for 12 long years and had the public (and even most Democrats) on their side in terms of whether same-sex marriage should be legal.

Fortunately, there seem to be seeing an opposing force starting to push back in terms of more and more states beginning to enact civil union statutes for gay and lesbian couples, if not outright legalizing same-sex marriage, proving once again that the wingnuts can delay social progress but can't stop it. DOMA, DADT, and other anti-gay laws are destined for the scrap heap sooner or later (hopefully sooner). It would be great if Congress can could present Obama with ENDA and a repeal of DADT for him to sign within Obama's term.

[jberryhill]

49. The situation is somewhat like reproductive rights pre-Roe

Of course nobody knows how things would have otherwise gone, but one of the lasting gifts of Roe v. Wade was the birth of the same religious right that now opposes marriage equality.

Given the progress in simply the number of states with marriage equality in the last couple of years, it is hard to imagine stopping this particular freight train.

I'd hate to see a difficult precedent set before President Obama can get more Supreme Court spots filled.

But, yes, DOMA was a stopgap measure designed to divert other movements at that time, and is not likely to last.

[bigjohn16]

6. I don't see where they addressed the issues the GLBT community had with the brief.

I'm confident he'll remain committed to signing a legislative repeal for the next 8 years.

[friendly_iconoclast]

9. Like Bush swore he would sign an assault weapon ban?

Sorry, we've seen this before.

[bigjohn16]

10. It's pandering at its worst. nt

[and-justice-for-all]

15. marriage should not be a government concern at all...

DOMA should be tossed right in the trash. It is absurd legislation and it should have never went to the floor to be heard.

[PurityOfEssence]

17. I am now, as I always have been, steadfastly for and against it.

All things to all people isn't anything to anybody.

This is a pivotal moment in history to really spin some things around and make things right. This is not the way to do it.

If ya want a bill, drive down the street and ask 'em to send you one. That should whip your bible-thumpin' friends into a pique.

[jgraz]

18. One might even say he's "fiercely" for and against it.

[Number23]

21. Hey Wall Street Journal, keep up. Political Tiger has already explained this at length

With backup from merh, sandnsea, Prosense, Tangerine and a whoooole lot of other people. :)

Kicked and rec'd

[Skittles]

26. LOL

:rofl:

[alcibiades_mystery]

39. The hardest part about being against a Imperial Presidency

Is when the President doesn't act like an emperor on issues that matter to me! Why can't the President act like an emperor on *my* issues (but not others)!?!

[jberryhill]

51. It's something of a built-in disadvantage for those who have faith in our system

...since the politicians who do not understand or believe in the US system of government, abuse it to the hilt.

My impression of President Obama is that he is not driven by any particular ideology other than confidence that over time our system of government moves in the correct direction, which it demonstrably has so far.

[solstice]

53. WTF is Shin Inouye? And WTF is the WH doing exactly - when Obama has already passed the buck

to Congress, who passed it right back to him?

This is just total bullshit. Obama is not doing ANYHTHING except being a coward here.

[Blue-Jay]

68. Here you go!

http://tinyurl.com/nhud2l

You're welcome! :hi:

[kenny blankenship]

55. That's Obama style leadership: If you other guys vote to repeal DOMA, I won't stop you

Make no mistake. If you lead, I as your President, will follow. At a safe distance.

Way to work that bully pulpit.

I love how he took the initiative and exhorted Congress to support his war effort by putting a bill on his desk rescinding DADT. What's that? You say he said no such thing? Huh.

[Kitsune]

56. Thanks for playing Completely Missing The Point...

Not one word about the deeply offensive language in the brief, not one word of apology, nothing.

Just more mealy-mouthed bullshit about how he won't stick his neck out for the LGBT community.

Rapidly getting to the point of being ashamed to have voted for Obama in the primary. :/

[Hippo_Tron]

59. While I'm sure that is the case, I don't see why they want to go the legislative route...

Obama is sometimes too big on building consensus rather than using tactical means to get things done. Legislative repeal of DOMA will be very difficult to push through. Fact remains, though, that DOMA is a blatant violation of the equal protection clause as well as full faith and credit. There's no reason to try and whip votes for something that can be defeated in the courts.

[ieoeja]

64. Equal Protection and Due Process: yes. Full Faith and Credit: no.

And the problem with doing this legislatively - aside from the fact that we will never get 60 votes in the Senate - is that we would simply be following the California precedence that a plurality has the power to strip our civil rights. So even we did get it through the Senate tomorrow, next time the GOP is in power they can re-legalize discrimination.

[Hippo_Tron]

69. There absolutely are full faith and credit issues with DOMA

The full faith and credit clause says that states need to respect the "public acts, records, and judicial proceedings of every other state." Arguably this means that since gay marriage is legal in Massachusetts, any marriage performed there must be recognized in Alabama as well. DOMA blatantly says that Alabama doesn't have to respect a Massachusetts law. Now that alone wouldn't mean all of DOMA is unconstitutional but the first part would be.

[ieoeja]

74. And the full faith and credit clause says Congress gets to regulate that point. Which DOMA does.

It is perfectly constitutional under the full faith and credit clause. You will never, ever find a federal judge who will state otherwise.

It should be, however, unconstitutional for the other two reasons.

[Hippo_Tron]

77. It says...

"And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

That does not necessarily mean "Congress can give states a full faith and credit wavier". DOMA is the first time they have tried to do this and thus it remains constitutionally untested.

[SpartanDem]

73. Anyone ever think keeping it out of court is a good idea?

if it is held up and when Obama does taks this on, the GOP will have an instant talking point about the courts have already decided this matter.

[Name removed]

75. Deleted message

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

[asphalt.jungle]

76. Proposition 8 was never deemed constitutional at that point

so of course the California Attorney General can stake out a claim that they will fight it because it's unconstitutional. At that point it was just something voters did. DOMA has been ruled constitutional in multiple courts. There is a big difference.

[merh]

78. And you continue to generate it

If a law is passed by congress (DOMA was) and signed into effect by the President (Clinton signed DOMA into law), then it is deemed constitutional until the judicial branch, a court of law, deems it unconsitutional.

Basic civics - legislative branch creates the law, executive branch enforces the lawfully created law and the judicial branch interprets the law to determine if it is constitutional.

[Name removed]

79. Deleted message

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

[merh]

80. Wrong - Obama is not the Justice Department

You are thinking of Bushco's DOJ, the one that ignored the constitution and existing law and found laws and treaties unconstitutional because they infringed on his duties as a war president.

The DOJ represents all of the USA, to include congress and the laws they pass. They are not Obama's law firm and flunkies, the DOJ was created by statute to defend the USA in lawsuits filed against it and to enforce the laws.

The AG wears two hats, one as the adviser to the president, and one as the head of the DOJ.

The president doesn't create the law or interpret the laws. Congress creates them, the judiciary interprets them.