Why the Obama administration is stuck strongly defending DOMA -- and it's not politics.

[pnwmom]

It's the way the judicial system works. The judge who wrote the decision on DOMA did it on the basis of an interpretation of the 10th amendment and states rights that, if upheld, would wreak havoc upon the federal government, civil rights laws, and progressive values. And it wouldn't even provide an overall benefit to gay people because it would free any state to discriminate against gays in any way it wanted -- and assert state rights.

Thankfully, Judge Walker's recent decision in California took an entirely different approach, and deserves all our support. Let's put our muscle behind that and not let the Rethugs twist us into knots over the DOMA case.

http://www.huffingtonpost.com/2010/08/06/supreme-double-rainbow-tw_n_673653.html

Perhaps more importantly, Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.
And that would have some seriously far-reaching ripples:

The arguments of Judge Tauro's two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government's taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

As nifty as it might be to watch the Tenthers hoisted with their own petard, Balkin lays out the many reasons that the Obama administration would be obligated to defend the DOMA in this case. Not that they'll look forward to doing so: when it comes to bad political "optics" nothing is going to give progressives -- at least the ones lacking the keen sense necessary to divine the larger threat to a progressive federal agenda -- greater fits than watching the Obama administration go to the wall in the defense of the Defense Of Marriage Act.

[ruggerson]

1. Many of us have been saying the Prop 8 case is the strongest vehicle

the MA cases are going to be overturned, because of the reasons cited in the article.

Walker's case, on the other hand, is going to be resoundingly upheld by the Ninth Circuit.

There is also the undeniable star power yielded by Olson and Boies. Figuratively, they represent an historic bipartisan push for marriage equality.

The depth and substance of Walker's decision has the social rightwingers very, very concerned.

[alcibiades_mystery]

2. DOMA was always a timebomb on precisely this point

Which demonstrates that Clinton's failure to veto it was not only craven cowardice and political opportunism, but also short-sighted stupidity.

[ruggerson]

3. DOMA was passed with overwhelming veto proof majorities

Clinton should have vetoed it on principle, (he was as craven a political coward on this in '96 as Obama is today, nearly a generation later) but historically and legally it wouldn't have mattered one whit.

[alcibiades_mystery]

4. He should have vetoed it

End of story. Let them pass it over a principled veto. But he dared not right before the election. It was both cowardly and stupid.

[ruggerson]

6. It's completely irrelevant to what is happening today

but I guess it depends on what one's agenda is.

And, yes, he should have vetoed it.

[alcibiades_mystery]

11. I have no idea what you mean

The OP is imputing a problem with litigating DOMA that's built into the structure of the law. I'm agreeing with the OP. It seems utterly relevant.

I don't appreciate the implication that there's some other agenda in my posts, as I'm sure you wouldn't (and don't) appreciate similar imputations of non-existent agendas. We can have a civil and courteous discussion without the nonsense.

[ruggerson]

68. There is nothing about any problem "built into the structure of the law"

The OP is about the fact that a Federal Judge in MA found a part of DOMA unconstitutional and used the 10th Amendment as the basis (partially) for his argument. The article the OP cites makes the point that in order to accept this line of reasoning from the Judge and be consistent, one would have to jettison entire agencies of the Federal government. Thus the 10th amendment argument compels Obama and his DOJ to fight this judge's ruling with vigor.

There is absolutely nothing about the "structure of the law" (DOMA) - the article is entirely about the structure of this particular judge's decision.

Thus, bringing Clinton into this thread has no intellectual purpose whatsoever - it is not related to what the OP discusses.

[alcibiades_mystery]

70. The judge's decision points up the problem with the structure of the law

If his little "farfetched" joke is to hoist the Tenthers on their own petard relative to states rights, it's equally true that DOMA was written in such a way to hoist the "progressive federal" movement on its own petard, by using its very logic (and stepping back from the strong States' Rights claims) in order to achieve a disastrous conservative victory. Put another way, the conservatives who pushed DOMA were devious in their application of the very federal supremacy arguments they themselves disagreed with. And that is the problem, and it's the problem that is exemplified in Tauro's ruling (he merely reverses the direction of the devious logic). And that DOES go to those who voted for and signed the law as an intellectual concern. Apart from the craven election year politics that no doubt played a part in Clinton's refusal to veto the bill, there is also the question of short-sightedness, because he and the others at the time should have seen that one cannot oppose DOMA without introducing a good deal of inconsistency on the federal-states issue, at least from the standpoint of the "progressive federal agenda." That they either didn't see that (unlikely, as they were brilliant on such matters) or chose to ignore it and leave others holding the bag goes directly to this discussion, and not in a "political" way.

[ruggerson]

74. Again

what Clinton did or didn't do has no bearing on what is occurring today and is kind of an idle exercise. The law exists, the law would have existed with or without Clinton's signature and the judicial marathon required to dismantle it is the same whether he had vetoed the bill or not. My interest is in what it will take either to get it overturned by the courts or repealed through the legislative process. I have virtually no hope for the latter. But, DOMA could be attacked quite successfully using a 14th amendment argument similar to the one employed by Walker in Perry. Tauro's ruling is a weak one, for all the reasons previously discussed, and likely to be overturned.

[MH1]

5. why such a large majority?

John Kerry, who many here criticize for many reasons, had the balls to vote against DOMA. Where did the others leave their balls that day?

[ruggerson]

7. Senator Kerry's anti-DOMA speech was magnificent n/t

[dsc]

8. the enviroment was a lot different then

there was a real possibility, if not probability, of passing a Constitutional Amendment banning gay marriage (one banning flag burning lost by a single, solitary vote). I lived in MS at the time and frankly I called gays the great uniters. Black and white folk in MS who could agree on pretty much nothing else, agreed gays were moral scum who shouldn't marry. I think a whole lot of people either weren't around in 96 or are choosing not to remember what it was like in 96. Heck, in 1996 gays could be fired, simply for being gay in New York state and Illinios let alone places such as say PA and OH. We couldn't pass hate crimes in 98 or 99 in the aftermath of Matt Shepard being tortured to death for being gay. It is impossible to prove a negative, but I do think that we very well could have had a federal amendment but for that bill.

[pnwmom]

10. I should have read your post first. You said it better than I did.

:hi:

[pnwmom]

9. At the time, there was a serious concern that if it wasn't passed in Congress,

the next step for the Rethugs would be to try to pass an anti-same-sex marriage law as a Constitutional Amendment -- and there were plenty of states' legislatures willing to do that . And that would have been far more difficult to overturn than DOMA is now.

Now I don't think such an amendment would get passed -- but then it was a real possibility.

[AtomicKitten]

12. It's tough to believe BClinton on DOMA when he bragged about signing it in a 1996 radio ad.

John Aravosis @ http://www.americablog.com/2007/06/bill-clinton-reportedly-told-john-kerry.html

It's no coincidence that after hiring Penn, Clinton signed the anti-gay Defense of Marriage Act and then ran radio ads on Christian radio touting his support for DOMA.

Also according to the following, the claim that he was preventing a GOP Constitutional Amendment is bogus, that that threat did not occur until 2003.

Pam's House Blend @ http://www.pamshouseblend.com/showDiary.do?diaryId=4887

4) Finally, there was no discussion at the time (1996) about a federal constitutional amendment defining marriage. DOMA was not crafted as a defense against further assault upon LGBT families by an increasingly hostile Republican Party. National discussion about amending the constitution came in 2003 after the Lawrence decision by the US Supreme Court and the Goodridge decision in Massachusetts and the news that Canada would recognize same-sex marriage. This was 7 years after Clinton signed DOMA.

In my research of NY Times articles I found the following:

"Excerpts from Platform Adopted by Republican National Convention" 8/13/1996:

Individual Rights and Personal Safety - "We endorse the Defense of Marriage Act to prevents states from being forced to recognize same-sex unions..."

Does it say anything about the need for a federal amendment?? NO. If this were the impending doom predicted by Clinton in 2008 (following years of amendments that now inform his defense of DOMA) there is no evidence to support that he was at all public about the possibility of further federal action against LGBT families.

[polmaven]

15. Apparently there are some flawed memories...

I distinctly remember people - ordinary people, perhaps, not legislators - talking about a Constitutional Amendment on a regular basis. If DOMA had not passed, believe me, it would have gone to that stage. The country was in a much different place then. There was no model from which to work. There is now.

[ProSense]

17. "The country was in a much different place then."

The country wasn't that much different. President Obama is being called a coward, but Bill Clinton is being excused for not being courageous enough to take a stand against DOMA. Kerry did, and he was up for re-election that year. The fact is that a few months ago Bill Clinton final decided to weigh in on repealing the law he signed in 1996. More than a decade has gone by, and no one has labeled Clinton anti-civil rights. No one has labeled Hillary Clinton anti-civil rights even though she has the same exact position on the issue as President Obama.

[ibegurpard]

22. don't even get me started on Clinton

I voted AGAINST Earl Blumenauer in 1996 because he voted for that piece of shit and he was from one of the most liberal congressional districts in the country. I actually listened to the crap people like you are trying to peddle back then and held my nose and voted for Clinton again. He rewarded me with Telecomm deregulation.

[dsc]

28. that is flat out non sense

I realize you style yourself an expert on all things at all times but to be perfectly blunt you don't know jack if you thing that being gay now is no different than being gay in 1996. The Ellen puppy episode (her coming out on TV) was in April of 1997. Until then not one single, solitary, leading character in any tv show ever was gay or lesbian. Not one. Following her coming out her show was cancelled the next year and she didn't work regularly for a few years. It took hosting the emmys in 2001 and finding memo in 2003 to get her career back on track. I can't find an exact number for 1996, but in 1998 there were fewer than 100 gay straight alliances in the entire US, now there are 4000. Including every single high school in Jesse Helms' school district (Wake county). It is simply unthinkable that I could be an out gay teacher in NC in 1996 while I am one in 2010. There is even an openly gay state house member in Alabama today, no she wasn't there in 1996. It is nothing short of absurd to say "The country wasn't that different"

[ProSense]

31. What the hell does that have to do with the fact that Hillary doesn't support gay marriage? n/t

[dsc]

34. you editted your post after I started for one thing

but like you always do I am choosing what I am answering. And the simple fact is you are dead wrong, as nearly always, when you state that there is no difference between 1996 and now on gay issues.

[ProSense]

36. Your comment is almost one hour after the edit. n/t

[dsc]

41. I, belive it or not, have a life

I got interrupted during the post. That is why I used the oh so confusing word STARTED.

[ProSense]

46. Your claim about the edit wasn't accurate,

Admit it.

[dsc]

50. yes it was

I started my answer before you editted. I got interrupted, if it matters I had to walk my dog and decided to go ahead and get dinner since I was already out. I then came back and finished my post. I was giong to have a longer post with poll data but had a hard time find data for the exact points in time I wanted so decided to cut it short. But bottom line, I was perfectly accurate in my post. you editted it after I started to respond.

[ProSense]

52. "I started my answer before you editted. " Disingenuous much?

My original post: 07:32 PM

Edited: 07:33 PM

It was an immediate fix.

Your original response: 08:25 PM

And you still haven't explained what the hell that comment has to do with the fact that Hillary opposes gay marriage?

[dsc]

57. No it isn't disingenuous

I started an answer to your post right after you posted (apparently). Again, I had intended for the post to have poll numbers in it. I took some time trying to find them after I clicked reply (that is how I usually do it). My dog started to act up so I took him out and then decided to go shopping for dinner. When I got back I finished the post and posted it.

as to your other point, I said, I am going to be just like you and only talk about what I want to talk about. I said it quite clearly in the post. In short, I am not going to discuss Hillary Clinton.

[ProSense]

60. "In short, I am not going to discuss Hillary Clinton."

Then you shouldn't have responded to a comment about Hillary's position with a completely off the topic post, and now you're trying to accuse me of editing my comment to justify your response. Blatantly disingenuous.

[dsc]

62. the post was about how it was different now than in 1996

which you apparently still believe.

[pnwmom]

39. Why not focus on NOW? Why is this being used as an excuse to dump on Clinton,

who couldn't have stopped DOMA even if he had vetoed it? The Rethugs had a veto proof majority.

[ruggerson]

42. Because they don't give a shit about this issue - they just use it to play politiical games n/t

[QC]

43. +1000000

[pnwmom]

45. I notice that I'm back down to zero recs. The only reason I care,

is I wish more people understood why Obama has no choice but to fight the DOMA ruling. We're letting the Rethugs tie us up into knots as we fight each other over this.

[ProSense]

49. This from someone

who cannot accept that the President is committed to repealing DOMA, but instead is using a victory in California as an opportunity to rail against him and call him a political coward.

You knew the President's stance. It hasn't changed. The only thing he can do now is push to fulfill his pledge, and you also know that Congress has to play a role.

[ruggerson]

59. Has he made a move to repeal DOMA?

Has he sent legislation down to the hill of which I am unaware? Has he done anything concretely to repeal DOMA other than tossing off a line very occasionally - most often coupled with a reiteration that be believes marriage to be "between a man and a woman?"

And yes any putative liberal or centrist/liberal Democrat in 2010 who is not fully supportive of marriage equality is engaging in political cowardice. And that includes Mrs. Clinton and Mr. Obama.

[alcibiades_mystery]

64. That's bullshit

That's a disgraceful charge, and a cowardly way to promote it, since I asked you explicitly what you meant by my supposed "agenda" above, and you did not reply.

[donco6]

76. It's the Dems "abortion" issue. Like a cat with a string.

And we fall for it again and again.

[truedelphi]

21. Still and all, it would be nice to be able to point to someone

Who acted like a Democrat, and not have to go all the way back to the days of FDR.

Young reporter: "So are you a Capitalist?"

FDR: "No."

Then: "Are you then a Socialist?"

FDR: "No."

Finally "So what ARE you?"

FDR: "I am a Democrat."

[vaberella]

48. Obama has said that he plans on repealing DOMA. He's just slow on the ball---not a coward.

n/t

[dsc]

75. anything not done in this Congress for gays won't be done at all during his term

and this isn't a slam against Obama, it is a bow to reality. We will lose seats in both houses this year and assuming a reelection he would become a lame duck fairly fast. He might be able to pass something in the first Congress of his second term but no way would it be a repeal of DOMA, it would at best be ENDA.

[polmaven]

14. A Constitutional Amendment

to "define" marriage would apparently have been more preferable to you? Do you NOT understand that is what would have followed if DOMA was not put in place when it was? President Clinton was not incorrect when he said last year that the country's views regarding GLBT issues have evolved. We are in a much different place now than we were then.

Far from being any of the things of which you accuse him, he actually prevented a situation that would be much harder to undo.

[alcibiades_mystery]

16. Oy vey

...

[polmaven]

18. Oh, that's right!

I keep forgetting that Bill Clinton was the worst thing ever to happen to this country. An Amendment would have been SO much better!

[ProSense]

19. Veto

The assumption here is that there would have been enough votes to override a veto of a Constitutional amendment. The majority may have supported DOMA, but there is no indication that a super majority would have supported a Constitutional amendment.

[polmaven]

23. The bill passed the Senate

by a majority vote of 85-14....Of COURSE an override would have passed, and, with that kind of support, a super majority of 66 yea votes would not have been out of the question by any means.

[ProSense]

25. That was DOMA, and so

what, at least Clinton would have been on record as opposing it. There is no evidence that a Constitutional amendment would have had the equivalent support.

[polmaven]

26. Like I said....

I keep forgetting that Bill Clinton was the worst president ever to be elected in this country.

[ProSense]

27. Oh brother. n/t

[dsc]

29. you can't veto Constitutional amendments

they take 2/3 vote to pass. As usual you know nothing of what you speak.

[ProSense]

32. He could have vetoed DOMA, and

there is no evidence that a super majority would have supported a Constitutional amendment.

Just as I said, some people will use every excuse to defend the person who signed DOMA into law.

[dsc]

35. and it would have passed anyway

since it passed with over 80 votes. The fact is, as usual, you had no idea what you were talking about and just spouted crap and got caught.

[ProSense]

38. How many votes did the Constitutional amendment get? n/t

[dsc]

40. In 2006 it got 49

in a Senate with 55 Republicans. Two Dems voted yes Byrd and Nelson. Byrd was in the Senate in 96 while Nelson wasn't. Kerrey was.

Honestly I don't know how many it would have gotten. Since we had several southern Democrats who were very anti gay in the Seante at the time (we had 47 seats), it might well have gotten the votes in needed. Assuming that every GOPer except McCain and Chaffee would have voted for it, a pretty safe assumption, it would have needed an additional 16. Certain Democratic votes for it would have come from Hollings, Nunn, Johnson, Ford, Exon, Heflin, Breaux, and Nighthorse-Campbell. Probable yes votes include Pryor, Bumpers, Conrad, and Baucus. That gets us down to 4. Do I know 4 more votes existed back then, no. Do I think it is pretty damn possible, yes. Especially since in this universe there is no DOMA so people like Pryor and Bumpers would have had to choose between voting no on that amendment and facing gay marriage will be forced on Arkansas ads and not being to point to DOMA, and voting yes.

On edit I realize I miscounted. They had 53 votes minus the two I said which is 51. Add in Byrd and you have 52 meaning you need 15 more votes not 16. So then they only needed 3 more if all my certain and probable yesses were yesses.

[ProSense]

47. Is 49 a super majority?

How many did it get in 1996?

[dsc]

51. If you aren't going to read posts then please state it up front

it took me the better part of a half hour to research that post and frankly I am beyond pissed at your total disrespect of it. I frankly have to say that if I thought for a second that Obama hired you or people like you for any purpose I would vote for him in a million years.

[ProSense]

53. How many votes did it get in 1996?

Can you answer that question?

[Name removed]

55. Deleted message

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

[ProSense]

58. No you didn't, but it's obvious you're frustrated because

you're spinning like a top.

[Name removed]

61. Deleted message

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

[alcibiades_mystery]

67. Come on, dsc

Your posts are always great and well considered. Are you really here defending the proposition that Clinton signed DOMA in order to forestall or make unnecessary a Constitutional Amendment? Is that really where you want to stake your ground on this issue? Because it is a fucking delusional claim.

[dsc]

73. He signed it because it would have passed anyway

but I do think it passed in part because of a fear of a Constitutional amendment, which was hardly far fetched.

[alcibiades_mystery]

65. Clinton was great on many things...on this he was a coward at the least, a political opportunist

at worst.

And your justification of his behavior (he signed DOMA to block a then inevitable Constitutional Amendment) is so fucking pathetic that it barely merits response.

As for why this is being brought up now, the answer is not some conspiracy or other: the problem in dealing with DOMA is structurally embedded in the law, as the fucking OP clearly points out. As such, it is perfectly consistent to speak about the structure of the law at the time of its passing, and the various judgments people made on it at the time. This is clearly relevant to the OP to all but the most paranoid or blindly partisan.

[ruggerson]

69. See post #68 above

You are not grasping what the OP is about. It's not about the structure of DOMA, it's about this particular Judge's rather far fetched reasoning in finding a section of DOMA unconstitutional.

[ibegurpard]

13. yes, yes...

another issue he's on the wrong side of and his hands are tied.
bah.

[jgraz]

20. Yeah, just like Schwarzenegger and Brown were forced to strongly defend Prop 8

Oh wait...

[ProSense]

24. Schwarzenegger is your hero?

Schwarzenegger believes civil rights should be left up to voters. So you're proud that he vetoed the gay marriage bill several consecutive years in favor of a ballot initiative, and now says it OK because the courts have overturned the voters?

[Name removed]

30. Deleted message

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

[inna]

33. you don't even make a bit of sense any more.

[ProSense]

37. What is that you can't understand:

facts?

[jgraz]

71. Fred Phelps is your hero?

Makes exactly as much sense as your post.

BTW, if Arnie *were* my hero, at least he's less of an impediment to LGBT civil rights than your hero. That's gotta suck for you.

[pnwmom]

44. Did you even read the actual post? If you had, you should know the situations aren't comparable.

The DOMA case will be coming up before the U.S. Supreme Court, and if it is upheld, its reliance on a conservative/libertarian "states rights" theory will have terrible ramifications for civil rights, including gay rights, and progressive Federal programs in general.

What will we have gained if DOMA is upheld, benefiting the residents of 5 states, but dozens of other states are then allowed to change their laws to allow discrimination against gay people?

Schwarzenegger and Brown, on the other hand, can applaud Judge Walker's ruling as an advancement for gay people and civil liberties in general. It isn't based on a fringe theory of states rights, but on due process and equal protection.

(If Schwarzenegger, like Obama, was facing a case that -- had it been upheld -- could have dismantled the family service system in his state, I certainly hope he would have worked hard to oppose it.)

[jgraz]

54. Did you even read the actual Obama DOMA brief?

It did not make a 10th Amendment argument. It said that banning gay marriage was good for the federal budget and it supported those arguments by invoking incest and pedophilia.

[pnwmom]

56. Well, the ruling in question did make a 10th Amendment argument.

Perhaps the Obama administration was afraid that arguing based on the 10th would make it that much more likely that the case would set a precedent that no one wants to see happen.

[ruggerson]

63. You guys are talking apples and oranges

jgraz is referring to the first Obama brief in the Smelt case - a rather weak case that originated in CA. pnwmom is referring to the GLAD case in Mass and its companion case brought by the state of MA against the US gov't. That case has not yet gone to the USSC and the author of the article the OP is citing is saying that if it does, the Obama DOJ will be compelled to fight it tooth and nail, because of the decision's reliance on the 10th amendment.

[pnwmom]

66. THANKS, Ruggerson, for the clarification! You are right that I was referring to the

Massachusetts cases. I didn't realize jgrz was talking about a different case completely -- just thought I'd missed it.

[jgraz]

72. This will be a helluva lot less confusing when gay marriage is legal everywhere.

Can we just do that, please?