Obama abandons defense of federal gay-marriage ban
The Obama administration has announced it will no longer try to defend Section 3 of the federal Defense of Marriage Act from lawsuits alleging the law is unconstitutional. (The law forbids the federal government from recognizing any marriage other than that between a man and a woman.)
The decision is big news, but probably not as big as some have suggested. In real terms, it probably doesn’t change much at all. As Attorney General Eric Holder noted in the announcement:
“Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.”
In other words, it’s still law, and despite concerns about constitutionality, the Obama administration will still honor it. Other parties, including members of Congress, are also still free to defend the law from constitutional challenges already underway in several federal court jurisdictions.
One of the constitutional issues at stake involves states rights. Marriage has always been regulated and defined by the states; the federal government, for example, does not issue marriage licenses, and nothing in the Constitution gives it the power to do so. The entire area of family law — marriage, divorce, child custody, etc., — has been a state responsibility.
Last year, a federal judge in Massachusetts — a Nixon appointee — ruled the law unconstitutional on just those grounds, citing the Tenth Amendment:
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The division between state and federal powers delineated by the Constitution is not merely “formalistic.” Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.”
Despite their professed reverence for the Tenth Amendment — U.S. Rep. Phil Gingrey, you might recall, said “the very future of freedom and limited government depends (on it)” — I doubt many conservatives will find the judge’s logic convincing.
– Jay Bookman
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476 comments Add your comment
jewcowboy
February 23rd, 2011
2:30 pm
Thanks Obama for doing 2 years later what you should have done on 1.21.2009.
Guy Incognito
February 23rd, 2011
2:32 pm
Hmmmm, how’s that going to play in the black churches, whose members are much more homophobic than the population in general?????
Tom Middleton
February 23rd, 2011
2:32 pm
It ain’t freedom unless people are actually free. Thank you, Mr. President. We’re getting there!
Granny Godzilla
February 23rd, 2011
2:34 pm
Such good news…..
Doggone/GA
February 23rd, 2011
2:37 pm
It’s a start. The REAL good news will be when the law is struck down or repealed
Port O'John
February 23rd, 2011
2:40 pm
Nobody is more homophobic than conservative, white, southern baptists. When it comes to hating gays, the Georgia GOP does not come in second place.
Granny Godzilla
February 23rd, 2011
2:43 pm
Speaker of the House John Boehner has released a statement concering this.
(Get the screen cleaner ready)
“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.”
jm
February 23rd, 2011
2:44 pm
Where’s that wonderful “commerce clause”…..
I’m all for states rights. I have no idea how one deals with the issue of marriages announced in one state being honored in another state where they are illegal…. that’ll be a head scratcher.
What does a gay couple do when they move to another state where their marriage isn’t recognized?
jm
February 23rd, 2011
2:46 pm
“The REAL good news will be when the law is struck down or repealed”
I’m all for “let’s throw out all laws that fall under the commerce clause”. Wait a sec…. there goes Obamacare.
Jay
February 23rd, 2011
2:46 pm
The funny thing is, Scout now has his example of what the Tenth Amendment outlaws….
The Leg Lamp is a "major award".....
February 23rd, 2011
2:47 pm
“Obama abandons defense of federal gay-marriage ban”
Wow, now there’s a real shock, huh.
jewcowboy
February 23rd, 2011
2:47 pm
It’s kind of amazing gays can’t obtain equal rights considering how powerful we are: http://www.christchurchquake.net/html/articlesList.html
jm
February 23rd, 2011
2:49 pm
“What does a gay couple do when they move to another state where their marriage isn’t recognized?”
I’m all for federalism, but people need to realize the shortcomings. I don’t think people will be passing laws in favor of gay marriage anytime soon in red states. Meaning, gay folks will be “free to move about the country” without issue, in Blue States…. a bit of a mess, but that’s federalism.
Ok, good. So now gays can get married where its legal (when the law is finally declared unconstitutional). I look forward to seeing Jay celebrate when Obamacare is repealed.
The Leg Lamp is a "major award".....
February 23rd, 2011
2:50 pm
No matter how you lean politically, this headline is hilarious…
“400-pound woman attacks roommate — for eating her cookies…”
http://www.nydailynews.com/news/national/2011/02/22/2011-02-22_florida_woman_busted_for_assaulting_roommate_over_girl_scout_cookies.html
jm
February 23rd, 2011
2:51 pm
jc 2:47 – your comment was funny. the articles, not so much.
jm
February 23rd, 2011
2:52 pm
Leg Lamp – my dog ate 2 boxes of girl scout cookies last week. My wife was p-ssed, seriously. I was nervous. I put him in the back yard after telling him I’d do my best to get my wife a valium, but until then, hide out in the woods.
Blog God
February 23rd, 2011
2:53 pm
Wow, jewcowboy, whatever you say….from now on….I’m on your side…..
Midori
February 23rd, 2011
2:54 pm
JCB – I didn’t know you were gay.
I knew there was something about you!!!
Midori
February 23rd, 2011
2:54 pm
Leg Lamp – is Rush still mad at her?
arnold
February 23rd, 2011
2:54 pm
Don’t worry. Georgia will fight to the end to ban gay marriage. Then the banners can follow the Libya nut case into martydom.
jewcowboy
February 23rd, 2011
2:55 pm
jm,
“the articles, not so much.”
It makes one wonder who would put so much money and time behind their whackjob ideas…
jm
February 23rd, 2011
2:55 pm
midori – cowboy is one word. This is a JCB
http://www.jcbna.com/products/2-construction/
Aquagirl
February 23rd, 2011
2:56 pm
Thanks for the link jewcowboy, I never realized there was a sub-species of Swamp Lesbians. Highly informative.
The Leg Lamp is a "major award".....
February 23rd, 2011
2:56 pm
Port O’John
February 23rd, 2011
2:40 pm
And no one is more prone to hate speech than those Wisc union members who basically shut down school, paraded around with illegal doctor’s excuses, and held signs comparing the situation to:
Hitler
Mussolini
Mubarek
Rape
Death
Fascism
WTF
Glad to know their cause was “for the children” and not themselves.
jm
February 23rd, 2011
2:58 pm
jewcowboy – money and time….. lot’s of people with that. Or else why would EPI issue a multi-page bogus research report crafted by a bunch of the heads of labor unions?
BTW, Jay, willing to admit the EPI report is so biased as to not be credible due to the source?
The Leg Lamp is a "major award".....
February 23rd, 2011
2:58 pm
Midori
February 23rd, 2011
2:54 pm
????????
jewcowboy
February 23rd, 2011
2:58 pm
Midori,
“I didn’t know you were gay.”
And evidently all powerful…least in geological aspects…
Bosch
February 23rd, 2011
2:58 pm
Despite their professed reverence for the Tenth Amendment — U.S. Rep. Phil Gingrey, you might recall, said “the very future of freedom and limited government depends (on it)” — I doubt many conservatives will find the judge’s logic convincing.
Because like all things wingnuts, they lalalalalala love the Constitution, until it gets in the way of their hypocrisy.
jm
February 23rd, 2011
2:59 pm
Leg Lamp – don’t forget comparing Walker to “Darth Vader”. Even though he brought balance to the force…. obviously they don’t have their star wars facts straight. Crike.
Jay
February 23rd, 2011
2:59 pm
jm, the Constitution requires those marriages be recognized.
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
The courts haven’t had to confront that one yet, but once they do I think there’s only one way they can go.
arnold
February 23rd, 2011
3:00 pm
The Leg Lamp is a “major award”…..
February 23rd, 2011
2:56 pm
Why aren’t the police, firefighters, etc also not in the crosshairs of the Wisc. Governor? Is it because they supported his election?
The Leg Lamp is a "major award".....
February 23rd, 2011
3:00 pm
Bosch
February 23rd, 2011
2:58 pm
Were you impressed with the FL judges logic that Obamacare is unconstitutional? People in glass trailers…….
Doggone/GA
February 23rd, 2011
3:01 pm
Jay – there’s also this:
Section 1 – Each State to Honor all others
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof
jm
February 23rd, 2011
3:01 pm
Bosch 2:58 whatever.
Hey, question. If 2 people get married across state lines, is that commerce? Just curious…. the 9 should have a field day with this question.
USMC dawg
February 23rd, 2011
3:01 pm
“Obama abandons defense of federal gay-marriage ban”
So Obama was against it BEFORE he was FOR it…
Haven’t we heard this somewhere before?
Just in time for his 2012 election campaign… How convenient!
Marriage: The union between a man and a woman.
What is wrong with “Civil Unions”?
Jay
February 23rd, 2011
3:01 pm
that too, Doggone.
jewcowboy
February 23rd, 2011
3:02 pm
jm,
“This is a JCB”
Well…I used to resemble that backhoe in my early years…but that is another story,
jm
February 23rd, 2011
3:03 pm
Jay 2:59 – guess it comes down to the constitutionality of the law then. well, lot’s of fun stuff before the SCOTUS soon enough. Obamacare, gay marriage, (and I’m sure a host of low profile but important items). Lively….
Chuck Anziulewicz
February 23rd, 2011
3:03 pm
WELL IT’S ABOUT TIME! The Obama Administration obviously dropped its defense of DOMA, because from a Constitutional standpoint there is no defense! DOMA sets up differing legal standards for Gay and Straight couples. Because of DOMA, even Gay couples who are legally married in Iowa or Massachusetts are unrecognized by the federal government for the purposes of tax law and Social Security; obviously this violates the 14th Amendment. Also, such couples become “UN-married” if they move across state lines, so DOMA violates the “Full Faith & Credit” clause. Thank goodness DOMA’s days are finally numbered!
jm
February 23rd, 2011
3:03 pm
Doggone 3:01 – good one. handy dandy.
JohnnyReb
February 23rd, 2011
3:04 pm
I changed my mind before it was repealed to support doing away with DADT. My jury is still out on gay marriage. I would have preferred this latest arrogance from Obama be over something other than gay marriage. With that stated, Obama does not have the authority to declare portions of law unconstitutional. That decision is for the court system.
Nice Guy
February 23rd, 2011
3:04 pm
“that too, Doggone.”
That screaming you hear is Doggone running around her office parking lot screaming in elation that Jay recognized her.
jm
February 23rd, 2011
3:05 pm
jewcowboy 3:02 – JCB’s, made in Savannah….
Bosch
February 23rd, 2011
3:05 pm
Off topic, but from the AJC:
Republican Gov. Mitch Daniels, who had urged GOP legislators not to act on the right-to-work bill this year…
….because I’m gonna run for President and don’t want to piss off a bunch of people….
thomas
February 23rd, 2011
3:06 pm
Enter your comments here
Midori
February 23rd, 2011
3:06 pm
Koch “She’s a real piece of a$$”, Walker “oh Yeah”, Koch: “I’ll…show you a good time”
http://www.vanityfair.com/online/wolcott/2011/02/great-white-hope-gets-rope-a-doped.html
stands for decibels
February 23rd, 2011
3:06 pm
JCB, so I take that to mean that New Zealand counts among its residents at least one boneheaded homophobe?
ya learn something new every day.
Obama abandons defense of federal gay-marriage ban | Jay Bookman | Slinking Toward Retirement
February 23rd, 2011
3:06 pm
[...] Obama abandons defense of federal gay-marriage ban | Jay Bookman. This entry was posted in Uncategorized and tagged amendment, announcement section, ban jay, change, constitution, constitutional challenges, constitutionality, Court, decision, defense of marriage act, divorce child custody, doesn, fundamental principle, gay marriage ban, issue marriage licenses, Jay Bookman, marriage divorce, principle, State, wisdom. Bookmark the permalink. ← Newt Gingrich confronted over affair – Emily Schultheis – POLITICO.com [...]
The Leg Lamp is a "major award".....
February 23rd, 2011
3:07 pm
GALLUP: DC, Hawaii Still Most Approving of Obama; All States Decline…
2012 Ad Blitz for Obama Planned…
Army of community organizers to carry ‘movement forward for years to come’…
jewcowboy
February 23rd, 2011
3:07 pm
USMC dawg,
“What is wrong with “Civil Unions”?”
Will you civilly unite with me?
http://www.youtube.com/watch?v=47cJSou-6JQ
http://www.huliq.com/10304/hawaii-approves-bill-legalizing-civil-unions