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February 23, 2011

Obama: DOMA Unconstitutional; Justice Dept. Reverses Course

President Obama has decided that the Defense of Marriage Act (DOMA) is unconstitutional and has asked his Justice Department to stop defending it in court. DOMA defines marriage as only between a man and a woman.

The Justice Department just released the following statement from Attorney General Eric Holder:

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.

Update: In December 2010, Congress repealed "don't ask, don't tell," a ban on gays and lesbians serving openly in the military. During his campaign, Obama supported the repeal of DOMA, a bill that President Clinton had signed into law in 1996. In October, Obama said his views on same-sex marriage were evolving.

The New York Times reports on how the development to reverse course took place.

The decision to change position grew out of an internal administration policy argument, first reported by The New York Times in January, over how to respond to two lawsuits filed late last year in New York.

Citing an executive-branch duty to defend acts of Congress when plausible arguments exist that they are constitutional, the Obama administration had previously argued that legal challenges to the Defense of Marriage Act should be dismissed.

Comments

The United States of America has a " Constitution " which protects the laws we have followed for many many years,which includes the " DOMA ACT " it IS CONSTUTIONAL!

We, the legal citizens of the United States, do not beleive that ANY president has ANY rights to PICK & CHOOSE, what-ever law HE or SHE wants to change in OUR CONSTITUTION!

You need to read why the Justice Department did what it did.
From the Associated Press:

Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman. He noted that the congressional debate during passage of the Defense of Marriage Act "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships — precisely the kind of stereotype-based thinking and animus" the Constitution is designed to guard against."

Indeed.

What is sad about this is that it simply marks a watershed in the fact that Christianity is loosing its ability to capture the moral vision of our people. We have failed to articulate that:
1) moral disapproval is at the heart of all legislation. Its not a stereo-type, it a question of what a healthy relationship is, and what's natural.
2) That this country has had an underlying sexual ethic that has honored biological difference and diversity in a marriage as good (homosexuality rejects this).
3) We've allowed repeated psudo-science claims to go unchallenged.
4) and finally, we've completely failed to object to homosexuality on the grounds that it really is a bad for homosexuals; its not loving to encourage someone in the delusion that there mind should want what their body is not made to have.
We truly have failed our homosexual friends. May God forgive us....

This should be no surprise.
This administration has stood (actions speak louder than words) for anti-Christian ways even before they were in office.
Pray and vote conservative people back in office.
I am seeing Christianity come back - and big time in those under 20!

We don't live under the holy book or religious rules of Christianity or Islam or Hinduism or any other religion or sect. We live under the rights enshrined in the Constitution. What part of 'equal treatment under the law' do the anti-gay religionists not understand?

LOG!!! (Land 'o Goshen!) "Obama: DOMA Unconstitutional; Justice Dept. Reverses Course" Huh? (Whack upside the head.) Wow, I didn't see this one coming! Whoa, baby, this is a huge surprise! Good golly, Miss Molly! Who'd a thunk! Man'o live! Shoot! Crime in Italy! "Surprise, surprise, SGT. Carter!" Was anyone really surprised by this? He is so predictable. Liberals always are. Learn the basic presuppositions of progressive liberals and you can predict their policies and decisions. And if you believe BHO anguished over this decision, I've got some cheap swampland in FL I would like to sell you.

Jodie wrote, "The United States of America has a 'Constitution' which protects the laws we have followed for many many years,which includes the DOMA ACT." Jodie, the DOMA is not part of the Constitution; it is legislation that Congress enacted more than 200 years after the Constitution was ratified. It isn't even an amendment to the Constitution. Furthermore, the Constitution was not written to protect existing laws; it was written to protect our freedoms and liberties and to limit the power and scope of the federal government. Believe me, I love the idea of defending traditional marriage between one man and one woman; but based on my understanding of the Constitution, that is not the role of the federal government. This is especially clear when we consider the 10th Amendment: "The 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." If you read the Constitution, you will see that making laws pertaining to marriage is not a delegated federal power. In fact, marriage is not even mentioned in the Constitution.

Although I don't agree with Obama on this matter (I happen to agree with him on most other matters except on this and abortion), as a committed follower of Jesus Christ,I support the general view of "Kathleen" above. I am disappointed in the stand the administration has taken on marriage but understand out of my own deep Christian faith that the Bible is one thing and the Constitution is another. At points they may overlap but they are not identical. Therefore, it is unreasonable to expect the administration to please all American Christians on every issue. Though we may like to think that it comes close, America is not synonymous with the Kingdom of God in Christ. Never has been; never will be.

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. Face it: 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.

Julie said:"I love the idea of defending traditional marriage between one man and one woman; but based on my understanding of the Constitution, that is not the role of the federal government. This is especially clear when we consider the 10th Amendment".
What you say, Julie, is true, I agree that this is an issue that should be left up to the states, in so far as it can be, federal taxes complicate this argument a bit (I'm not sure if married homosexuals in Vermont are forbidden from filling as married on their federal tax forms or not based upon DOMA or some other legal principle). The irony is that DOMA has simply protected states that don't have homosexual marriage from having to make the argument that they should not have to honor such marriages under the good faith a credit clause of the constitution, because it is opposed to their own state policies. Thus DOMA really is a pro tenth amendment federal law. The notion that traditional marriage is unconstitutional is simply a transvaluation of the value of equality. Equality in the constitution does not mean we ignore biological difference on the order of men and women. This is not just a Christian issue is a basic public order issue.

And we're able to use the same argument regarding healthcare.
If you read the Constitution, you will see that making laws pertaining to health care is not a delegated federal power. In fact, healthcare is not even mentioned in the Constitution.

"The irony is that DOMA has simply protected states that don't have homosexual marriage from having to make the argument that they should not have to honor such marriages under the good faith a credit clause of the constitution, because it is opposed to their own state policies. Thus DOMA really is a pro tenth amendment federal law." Thanks for clarifying that, John!

Here is an interesting DOJ letter to Orrin Hatch in 1996.
Letter to Orrin Hatch On Presidential Decisions Not To Defend Statutes
http://www.scribd.com/doc/49512515/Letter-to-Orrin-Hatch-On-Presidential-Decisions-Not-To-Defend-Statutes

Gay marriage is already legal in some states and many countries, and gay divorce is already a reality. Custody and child support work the same way basically- best interest of the child, and whoever gets more physical custody time is usually entitled to child support. Seems a silly question anyway, as if because there might be new legal issues involved, gay marriage shouldn't happen? The laws will adjust to the new circumstan­ces, as it always has when the law changes.

I agree with greg, kathleen, julie, and chuck above. I am a committed follower of Jesus Christ.

This is not about law - it is about "science" (actually, it is about pseudo-science). If you pay in some way enough scientists to say what you want them to say - it is then called scientific.

I quote Obama/Holder letter to Boehner (Speaker, House of Representatives):

"Second, while sexual orientation carries no visible badge, a growing scientific consensus
accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex
and Reason 101 (1992)"

Another dumb typo in the evasion in this letter to Boehner: how can a consensus "grow"? - a consensus means 100% agreement - how can it be more than 100% (grow)? Who determines scientific consensus?

Christians have a right to vote their value system - just like everyone is. Legislation is a secular matter, but Christians have the right to participate according to their opinions. Constitutionality is a complex hair-splitting matter, but it is very straightforward. Obama/Holder have made a great mistake because their arguments against DOMA can be easily rebutted.

There is no scientific consensus that accepts sexual orientation is a characteristic that is immutable. Obama is not a scientist. He has found scientists to say so.

"Christians have a right to vote their value system -just like everyone is. Legislation is a secular matter, but Christians have the right to participate according to their opinions."
Well said! Word!

Manuel --

"Consensus" does NOT mean "100%." It means a general or widespread agreement, which, of course, can, in fact "grow."

Richard Posner, whose book you mock, is not a scientist. He is a federal circuit court judge, appointed by President Reagan to sit on the U.S. Court of Appeals for the Seventh Circuit. Before taking the bench, Judge Posner was a professor at the Univ. of Chicago School of Law and is a leading authority in the "law and economics" school of thought.

Scientists and doctors themselves determine what the scientific consensus is. There are major, reputable, scientific and medical organizations who base their positions on peer-reviewed work. They write peer-reviewed scholarly articles and books. They almost all take the position that, generally, sexual orientation is immutable and not a mental or other disorder that must be "treated" or "cured." Scientists have been saying this since long before Pres. Obama was even out of college. The notion that all these scientists have been paid "to say so" is plainly ludicrous.

You are entitled to your own opinion, and to vote your "values," but neither you or anyone else is entitled to your own facts.

"There are major, reputable, scientific and medical organizations who base their positions on peer-reviewed work. They write peer-reviewed scholarly articles and books."
Well then, let us all genuflect to reputable scientists, medical organizations and peer reviews. Thing is, scientific consensus often tends to change with time and further research. I'm old enough to remember back in the '70's when the Harvard Medical Journal (?) came out and declared that coffee was bad for your heart. (I'm sure those reports were peer reviewed.) A decade or so later other "peer reviewed" and "reputable" scientists came out and said coffee would not hurt your heart. Then about a decade later researchers (no doubt reputable and peer reviewed, too) said coffee is actually good for you (something about anti-oxidants). Now had I told those Harvard "men" in the ‘70’s that those peer reviewed and reputable researchers were full of beans, I would have been reminded that they most certainly are the experts, and not scientifically challenged luddites like myself. But I didn’t believe them then and have ever since enjoyed coffee in all of its manifestations.
But really, the issue is not the immutability of homosexual orientation or the reputability of researchers or their peer reviewed reports. But the issue is this: how does God view homosexual behavior. In fact, on all issues on which God speaks, He is the only reputable authority we need - and He doesn't need to be peer reviewed. And He alone is immutable. So what if "reputable and peer reviewed scientists" declare homosexuality is immutable. God does not rely upon their reputable research to form His moral judgments. You might say heterosexuality is immutable. But heterosexual sex outside of Biblical parameters - which is marriage - is disobedience to God. Regarding homosexual behavior, God says in Leviticus 18:22 "You shall not lie with a male as one lies with a female; it is an abomination." Now God said it, and that settles it. Whether or not God’s moral law conforms to reputable and peer reviewed scientific research is irrelevant. And to the best of my knowledge God has not changed His mind.

"To the best of my knowledge . . ."

-- That's precisely the problem.

The whole quote is this: "And to the best of my knowledge, God has not changed His mind."

"-- That's precisely the problem"

Well, I'm in good company.

Hebrews 13:8 Jesus Christ is the same yesterday and today and forever.


[For shame! Is this any way for a Christian Lawyer to behave. Christian Lawyer. Huh. Isn't that an oxymoron?]


"To the best of my knowledge . . ."

See, here you used and elipsis. But in typical lawyer fash...no I will not lower my self to that level.

I will simply quote the The Associated Press Stylebook to make my point.

"An "ellipsis" is a series of three consecutive periods used in a print passage to indicate the deletion of one or more of the words in condensing quotes, texts and documents. It is treated as a three letter word constructed with three periods preceded and followed by a space. When using an ellipsis the writer must be careful to avoid distorting the meaning of the actual verbatim quote."

I call your attention to the last sentence.

And now we're off topic. Dang!