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February 24, 2011

If Obama Won't Fight Gay Marriage, Conservatives Will

If President Obama and the U.S. Department of Justice no longer want to defend the Defense of Marriage Act from challenges by gay rights activists, who will?

Leading conservative law firms say they're eager to defend the 1996 law that defines marriage as between a man and a woman, but that may not be so easy.

Could a conservative firm like Liberty Counsel, a Florida-based group that often opposes the administration, be the stand-in for the U.S. attorney general before a judge hearing DOMA challenges?

"That's what we're pursuing," said Mathew Staver, founder of the firm and dean of Liberty University School of Law. "Somebody has to step in and do the job when the attorney general and the president will abandon theirs."

Liberty Counsel had filed friend-of-the-court briefs in two DOMA court cases and is now strategizing with members of Congress to intervene on their behalf to defend the law that bans federal
recognition of same-sex marriages.

"It's early in the process," said Staver, whose firm has litigated dozens of cases related to marriage -- including DOMA -- and represented Congress, state legislators and private organizations on other issues.

"We're still doing a lot of preliminary discussion."

Staver and other conservative lawyers have harshly criticized the announcement Wednesday (Feb. 23) by Attorney General Eric Holder that Obama had determined that DOMA is unconstitutional when applied to same-sex couples married legally under state law.

Last month, the Alliance Defense Fund submitted a brief on behalf of House Judiciary Committee Chairman Lamar Smith, R-Texas, in response to a Massachusetts challenge of DOMA being heard in a federal appeals court. Now it could be turning its attention to the cases in Connecticut and New York that prompted the administration's new decision.

"I have no doubt that the Alliance Defense Fund and other organizations will involve themselves in these cases," said Austin R. Nimocks, senior legal counsel for the Arizona-based firm. "The question is what is going to be the nature of the role. If somebody with (legal) standing to intervene in these cases wants ADF to represent them, we will certainly explore that with them."

California's Proposition 8 -- which ended same-sex marriages in the state but was later ruled unconstitutional by a federal judge -- offers some clues to the road ahead.

The ADF is representing the group ProtectMarriage.com to defend the 2008 voter referendum after the state's governor and attorney general opted not to defend it; the California Supreme Court is weighing whether the group has legal standing to step in as the case heads to a federal
appeals court.

The American Center for Law and Justice, a law firm founded by religious broadcaster Pat Robertson, also is mulling its role in the fight over DOMA.


Jordan Sekulow, a lawyer and policy director with the Washington-based firm, said attorneys are in private discussions with members of Congress and could represent some by filing amicus briefs or more directly representing them in court.

"It's possible that because of the politically charged nature of this that it's more likely for organizations who have taken a stand on this issue to lead the defense," he said.

His firm has represented dozens of members of Congress in recent cases, from opposing Obama's health care plan in Virginia and Florida to supporting the National Day of Prayer and disputed crosses erected in California.

But do these groups have a chance if they try to pick up where Justice Department lawyers left off?

John Witte, director of the Center for the Study of Law and Religion at Emory University, said conservative activists simply don't have the firepower or the "unrivaled" political power of administration lawyers.

"There's just no substitute for having the federal government's attorney general and Office of Legal Counsel involved in these cases," he said.

"Maintaining DOMA once the administration steps away ... is going to be much harder."

Comments

So by discrimina­ting against an entire group, it violates the equal protection that is guaranteed under the 14th Amendment of the Constituti­on. And from a moral perspectiv­e, gays are people too! They, as people, should have equal rights. It is morally unacceptab­le to believe otherwise

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There was never any point in defending something as clearly unconstitutional as the so-called "Defense of Marriage Act." 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, unlike married Straight couples, married Gay couples become "UN-married" if they move across state lines, so DOMA violates the "Full Faith & Credit" clause. There's no constitutional justification for denying law-abiding, taxpaying Gay couples the exact same legal benefits that Straight couples have always taken for granted, regardless of how hard Matt Staver and the Liberty Council try to find one.

Genesis2:22The LORD God fashioned into a woman the rib which He had taken from the man, and brought her to the man.

23The man said,
"This is now bone of my bones,
And flesh of my flesh;
She shall be called Woman,
Because she was taken out of Man."

24For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh." (God didn't create Adam and Steve...)
I don't think the Founders entertained the notion that marriage could even be btw same sex couples. And just b/c some states have lost their moral compass doesn't mean the rest of us have or that we should have to accept their stupid laws.

Gay sex is immoral. Is gay marraige immoral if the partners are celibate in their marraige?

DOMA prevents the federal government from recognizing gay marraige. This is discriminatory. Which is the greater sin, for a govt to discriminate against some of its own tax-paying, military-serving citizens, or for some of these citizens to engage in legal gay sex and marraige?

Repealing DOMA does not force anyone to get married. Our laws currently allow lots of immoral behavior. Why should the church rely on the govenment to enforce it's partiuclar morality?

There IS NO Constitutional right to marriage. What marriage redefinition advocates seem to be arguing for relates to the equal protection clause. But you can use the same reasoning to argue for polygamy or for my right to marry my own daughter (whether I'm male or female) or my right to marry my own sister, etc. The same people who said in the wake of the 60's sexual revolution that marriage was unimportanct (only a "piece of paper") are now suddenly fond of the institution insofar as it can be used to normalize homosexuality (or whatever comes next). While there are always true believers in any movement, this whole business isn't about "rights" so much as it's about a small minority of rabid activists forcing society to accept something that's viewed as abnormal if not sinful, and they're doing it out of very selfish motives (so they can feel better about themselves).

"...former House Speaker Newt Gingrich said President Barack Obama’s decision not to fully enforce the Defense of Marriage law eventually could lead to a constitutional crisis, as he has directly violated his constitutional duties by arbitrarily suspending a law.
"...clearly it is a dereliction of duty. Clearly it’s a violation of his constitutional oath. Clearly it is not something that can be allowed to stand."

Impeachment. Or even its possibility. Just what our country needs at this time. What's really clear here is that BHO is knowingly pushing this and probably hoping he will be impeached. He should be ashamed of himself. But as a prog lib, he knows no shame.

Dan nailed it. Prog libs know no shame because shame has been extricated from their gene pool. When you've successfully overcome the problem of shame a whole new world is opened up to you...and modern libs are exploring it with relish.

"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." U.S. Const. Article 4 sec. 1

I guess some "conservatives" only what to follow the Constitution when it suits their theocratic ends.

BHO is a student of Sauly Alinsky. Check out Rules for Radicals by Saul Alinsky. For eg. Alinsky says, "Present arrangements must be disorganized if they are to be displace by new patterns.... All change means disorganization of the old and organization of the new." p.116 And this is what he did here even if it meant creating a constitutional crisis. He is a shameless prog lib interested - not in our constitution or the country - but only in his own agenda. Remember how he came out against gay marriage during his run for the presidency. Why? To get those on board who could elect him. Then, when in office, what does he do? He "evolves". 2012 cannot come soon enough. I'll vote for a yellow dog before I vote for a democrat. I'm not too thrilled by the Repubs either - but for other reasons.

"I guess some "conservatives" only what to follow the Constitution when it suits their theocratic ends." Whoa, got a big red herring here. Let's stick with the issue.

"...he [BHO] has directly violated his constitutional duties by arbitrarily suspending a law.
"...clearly it is a dereliction of duty. Clearly it’s a violation of his constitutional oath. Clearly it is not something that can be allowed to stand."

In the United States, the oath of office for the President of the United States is specified in the U.S. Constitution (Article II, Section 1):
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Prog lib BHO swore to uphold the Constitution of our country when he took the presidential oath of office. He is now not doing so. Question: What do you call a President who breaks his oath of office? Answer: Former President...

And what does this say of his character? The Bible says in Luke 16:10"He who is faithful in a very little thing is faithful also in much; and he who is unrighteous in a very little thing is unrighteous also in much."
And Leviticus 19:11 11Ye shall not steal, neither deal falsely, neither lie one to another.

"Notwithstanding this determination, the President has informed me that Section 3 [the only section at issue] will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised."

-- Holder letter to Boehner.

No one has "suspended," "arbitrarily" or otherwise, the Defense of Marriage Act. Gingrich is flatly misstating what DOJ announced. In fact, over at NRO, the conservatives are all abuzz about why Pres. Obama will continue to enforce DOMA while now declining to defend it in one particular federal circuit.

The President will continue to enforce DOMA unless and until it is ultimately found to be unconstitutional. Refusing to take a legal position that one believes is unsupported by the law and/or facts, however, is the duty of all lawyers.

It was Pres. Bush who announced that he would pick and choose which laws he would actually enforce That's why he issued a reccord number of signing statements refusing to enforce parts of dozens of duly passed laws. I guess some "conservatives" only want to follow the Constitution when it suits their theocratic ends.

"It was Pres. Bush who announced that he would pick and choose which laws he would actually enforce..." RED HERRING! Ha! [Poor ol' GW. He just can't catch a break. Bush has been out of office how many years? And prog libs still love to drag him out to kick around - especially when BHO steps in legal doo doo.] Stay on topic - please.

"Refusing to take a legal position that one believes is unsupported by the law and/or facts, however, is the duty of all lawyers."
So now we have a lawyer in chief? I wonder if he will let us see his law license? Or is it locked up too?

Obama supported the law [DOMA] [without reservation] during the campaign. "He is breaking his word to the American people," Gingrich said. Also, he added, "He swore an oath on the Bible to become president that he would uphold the Constitution and enforce the laws of the United States. He is not a one-person Supreme Court. The idea that we now have the rule of Obama instead of the rule of law should frighten everybody. The fact that the left likes the policy is allowing them to ignore the fact that this is a very unconstitutional act," Gingrich said."

"Gingrich is flatly misstating what DOJ announced."
Apparently, there is a difference of opinion here. Know how to boil a live frog?

The topic IS whether Presidents can pick and choose which laws to defend or enforce. The "conservatives" thought it was OK for Bush to pick and choose, but not OK for President Obama.

In fact, the ultra-conservative Andrew McCarthy, writing at NRO, where they don't agree with anything Pres. Obama does, but they haven't completely lost their minds like Newt Gingrich has, has an article titled "The proposition that the President may decline to enforce unconstitutional statutes is unassailable." In it, he recounts the history of this policy from the Clinton Administration through the GW Bush Administration, and agrees with it. He states "In fact, it is the president’s DUTY to decline to enforce, for example, congressional enactments that encroach upon his authorities precisely because such statutes undermine the separation of powers that is the foundation of the Constitution." (Emphasis added).

He goes on to note that, contrary to Gingrich's claims, Pres. Obama is not even going so far as to refuse to ENFORCE DOMA. All he is doing is choosing not to defend it in court. McCarthy concludes, "I don’t see anything legally wrong with Obama’s refusal to defend DOMA." (Actually McCarthy thinks that if Obama thinks DOMA is unconstitutional, he should also refuse to enfoce it, but Obama hasn't gone that far.)

I guess "conservatives" like Newt only want the President to follow the Constitution when it suits their theocratic ends.

"McCarthy concludes, "I don’t see anything legally wrong with Obama’s refusal to defend DOMA.'" Andrew McCarthy! Geez Louise, why didn't you say so in the first place! Everybody knows that Andrew McCarthy is our constitutional touchstone for all things constitutional. As Mark Twain once said: "It's the difference of opinion that makes a horse race." And so we shall see.

"Difference of opinion" apparently means "it's OK when Bush does it, but it's a constitutional crisis if Obama does it.

Andrew McCarthy IS actually the touchstone for many conservatives, particularly on issues of presidential power, and he is joined by many other conservative legal scholars in this particular view. See The Volokh Conspiracy blog.

"Difference of opinion" apparently means "it's OK when Bush does it, but it's a constitutional crisis if Obama does it."
Mama always says, "Just b/c Dubya jumps off the roof doesn't mean BHO has to."

"Andrew McCarthy IS actually the touchstone for many conservatives..."
Mama used to say, "Really? And you know this...how?"

"I guess "conservatives" like Newt only want the President to follow the Constitution when it suits their theocratic ends."
Okay you got me there. In all honesty, I've already contacted the Grand Poobah, formerly known as Newt Gingrich, and have applied for the position of assistant Great Kahuna in his theocratic kingdom. He wrote back and said the job is mine provided I can come up with the long form of BHO's birth certificate.
"Hey, honey, pack the car. We're going to Hawaii - for a scavenger hunt!"
(Theocratic ends. Pshaw!)


Dan, make it a fair fight...tie half your brain behind your back!! TM is just another prog lib demonstrating complex symptomatology: Attention Deficit Disorder, Bush Derangement Syndrome...and, apparently, Newt Derangement Syndrome. TM subscribes to an old strategy: if the facts don't support your case then just make up some that will; or, at the very least, obfuscate and try to win a debate over peripheral issues that have little to do with the topic at hand...kind of like losing a baseball game by 20 runs but pointing out that you got one base hit...please

McCarthy said the BHO "Justice" Department is unethical: "One of the most insidious practices of the insidious Obama Justice Department is the sabotaging of litigation — i.e., DOJ purports to defend some statute or government policy so that it can appear to be moderate, but uses its resulting control over how the case gets litigated to forfeit some of the best legal arguments supporting the statute/policy. This way, DOJ can steer the case toward the radical outcome the Obama base desires rather than the outcome DOJ is ostensibly pursuing."

McCarthy said that Obama at least is coming clean now on DOMA even if it a purely political move to get back his wacko-leftist base. One has to wonder when these nutcases will start presenting equally valid Constitutional arguments advocating incestuous marriage, polygamy, or Lord knows what else.

Personally, I think there should be statutes requiring sperm donors to be conservatives-only so some semblance of conscience and common sense could have a chance of being inculcated back into the prog lib gene pool...

This from Dr. Timothy George and Chuck Colson:

"The decision by Attorney General Holder not to defend the Defense of Marriage Act raises very grave questions.

Justifying his position, he says that in the congressional debate there were "numerous expressions reflecting moral disapproval of gays and lesbians and their intimate family relationships." He went on to describe this as "animus" (defined by Webster as vehement enmity, hatred, ill will)-violating the Equal Protection Clause.

"Animus" to defend a moral position based on 2,000 years of classical and Christian teaching rooted in reason and scripture?

Holder has embraced the position of Federal Judge Vaughn Walker in California that opposing so-called gay marriage can be "harmful to gays and lesbians." But this is like claiming that opposition to polygamy is harmful to polygamists or that laws defining marriage as the union of two people harm those who prefer to live in what are called sexual "triads" or "quadrads." Our historic marriage laws harm nobody--they serve husbands, wives, children, and the common good of society."

I conclude that the Obama Justice Department is not only hyper-partisan but hopelessly incompetent.

Thanks, Truthmeister. You know, whenever a prog lib posts something like that above, something snaps inside and I just lose it from there. I just can't seem to help myself. But imagine being Prez of the USA, and not fulfilling your oath of office. And then imagine a prog lib (a lawyer no less!) defending that behavior saying - "Well, the other Prez did it. So it must be okay if this one does it, too." Thank goodness, prog libs aren't reproducing as fast as conservatives.

"I conclude that the Obama Justice Department is not only hyper-partisan but hopelessly incompetent." You know your math.


You know what kills me about these self-aggrandizing, legend-in-their-own-minds modern libs, besides their dishonesty, their substitution of legality for morality and the fact they can't think their way out of a wet paper sack? It's their total lack of shame. I mean the very same people who told us years ago that marriage was an outdated cultural appendage (nothing but a "piece of paper") are now telling us--with shameless, straight-faced sanctimony--that it's absolutely essential...for homosexuals. What follows, of course, will be a veritable cesspool of perversion masquerading as a cause celebre for civil rights: polygamy, incest, pedophilia, bestiality and whatever else these people can think of in their idle time (which they seem to have a lot of--the "devil's workshop" doncha know). Think it can't happen? Consider what people would have said about homosexual "marriage" 30 years ago!

Personally, I don't care who people love...love whoever or whatever you want...I'm not telling you who you can love. No one is. But marriage is between a man and a woman. Once we lose that the culture will get a major push into the toilet. The Scandinavian countries that have redefined marriage have seen marriage as an institution totally lose its meaning and importance...kids are being "parented" by single moms, 2 moms, 2 dads, shack-ups with "dad" sleeping with mom and grandma, etc. Of course, their lack of regard for marriage as an institution in the first place may have been what precipitated the whole mess.

When Chief Justice John Roberts was Acting Solicitor General during the Reagan Administration, he, on behalf of the Department of Justice, advised the U.S. Supreme Court that the DOJ would decline to defend an FCC policy because the policy "would not stand the exacting scrutiny required by the Constitution and this Court's decisions, and were thus
invalid." Roberts then authorized the FCC to use its own lawyers to defend the policies.

I guess it's only OK if you're a Republican.

"Defense of Marriage Act is the short title of a federal law of the United States signed into law by President Bill Clinton on September 21, 1996, as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. Under the law, also known as DOMA, no state (or other political subdivision within the United States) needs to treat as a marriage a same-sex relationship considered a marriage in another state (DOMA, Section 2); the federal government defines marriage as a legal union between one man and one woman (DOMA, Section 3). It passed both houses of Congress by large majorities. [Wikipedia]

Huh. So Pres. and Prog Lib in Chief WJC signed DOMA into law. But Prez and Prog Lib in Chief BHO - having evolved - thinks part of it is not constitutional and so won't defend it. I wonder what else BHO and Eric Holder don't think is constitutional and so won't defend either? Amazazing [sic]! Inquiring minds want to know.


"In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment." (Bay Windows)

Was there any doubt that a judge from Mass. would rule any other way? And when you have no moral compass, it's pretty easy to treat moral issues as if you were deciding on which beer to drink. (Tastes Great! Less Filling!)

But here is a universal "law" worth noting: Prog libs are always evolving regarding moral issues. [Remember Al Gore and how he evolved to accept abortion!] Especially when lots of money is involved.