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Opinion

Opinion

Obama action sidesteps court

March 2, 2011

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President Obama has said his view of same-sex “marriage” is “evolving.” Apparently he thinks that the law should be based on a kind of Darwinian jurisprudence which allows it to “evolve” and become whatever the ruling politicians at a given moment say it is (or isn’t).

How else to explain the decision by the president and his attorney general, Eric Holder, not to defend the Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996? The Senate vote was 85-14; the vote in the House was 342-67, an indication of overwhelming public support to keep marriage for opposite-sex couples.

Let’s leave aside for the moment any moral, religious, historical or cultural reasons for maintaining the legal status quo on marriage, which has precedent dating to biblical times. The president and his attorney general have concluded that because DOMA is being challenged before the 2nd Circuit Court of Appeals, which they say “has no established or binding standard for how laws concerning sexual orientation should be treated” — they will circumvent or overrule judicial authority and decide the matter for themselves. This “we are the law” thinking is what we oppose in Middle East dictators.

Holder contends that because of past “discrimination” against gays, the 2nd Circuit Court will, or should, apply a more “rigorous standard” to such cases and when they do, DOMA will be found unconstitutional.

Doesn’t this sound strangely like Richard Nixon’s approach to the law? It was Nixon who told David Frost in 1977, “When the president does it, that means that it is not illegal.” So when the president and his attorney general refuse to defend a law they have taken an oath to uphold, isn’t that the other side of the same coin? Imagine the reaction from the Left had George W. Bush announced his administration would no longer defend Roe v. Wade because he thought it unconstitutional and it would eventually be overturned by the Supreme Court.

Former Speaker Newt Gingrich in an interview with Newsmax.TV on Friday said he thought the Obama-Holder decision not to defend DOMA in the courts might be an impeachable offense and that the House may “zero out (defund) the office of attorney general and take other steps as necessary until the president agrees to do his job.” He later softened his stance on the issue of impeachment, saying instead in a statement to reporters that, though impeachment is clearly not an appropriate action, “Congress has every responsibility to demand President Obama live up to his constitutional obligations.”

The president and attorney general believe there are no “reasonable” arguments in favor of retaining DOMA. Constitutional attorney John Whitehead disagrees. Whitehead tells me he thinks the Obama-Holder tactic is “an attempt to provide cover for the president’s decision to achieve a repeal of DOMA through the courts as opposed to an even-handed evaluation of the strengths of the legal arguments.”

Whitehead notes that Holder has acknowledged a binding circuit court precedent which holds that “classifications based on sexual orientation are subject to ‘rational basis’ scrutiny.” Under such scrutiny, Whitehead says, “a legislative classification based on sexual orientation would be upheld if there is any conceivable basis to support the distinction; a court is not to judge the wisdom, fairness, or logic of the legislative choice.”

Whitehead adds, “Because rational basis scrutiny is extremely deferential to the decision of the legislature, the determination that it applies to a particular classification basis is usually outcome determinative; where rational basis scrutiny applies, that equal protection challenge is almost always denied.”

That is why President Obama and Attorney General Holder are wrong to pre-judge the outcome of this case in the courts, not to mention their rejection of congressional authority. Isn’t this ultimately about the separation of powers?

Comments

Ray Parker 3 years, 1 month ago

Deciding the morality of sodomy is above the Mombasa Marxist's paygrade. (Genesis 3:4-5)

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weeslicket 3 years, 1 month ago

geeze. another from cal the pontificator.

  1. so, if i understand correctly, it's because of "homos", that marriages fall apart. did i understand all that correctly? it has nothing whatsoever to do with putting your pizzle, or pozzle, where it needn't be. is that at least partly correct? and, there might be other aspects of human bonding that otherwise complicate long-term relationships. (just whacky-asking, here)

  2. help me out here. if the rule is: 1 man and 1 woman...... doesn't that, by rule, extinguish "divorce"?

3.. just my opinion: a) citizens have a right to form, and dissolve, a civil union (however one might describe a civil partnership of any sort) b) marriage, as a cultural contstruct, is mainly a topic best left to churches and their belief systems (e.g., weddings) to sort out.

you all have fun with this.

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ophiuchus 3 years, 1 month ago

"Let’s leave aside for the moment any moral, religious, historical or cultural reasons for maintaining the legal status quo on marriage, which has precedent dating to biblical times."

Mmmmm... "precedent dating."

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notajayhawk 3 years, 1 month ago

The presidents' oath of office:

"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."

Article II, Section 3 of that Constitution:

"He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

Again: "he shall take Care that the Laws be faithfully executed".

Once a bill has been passed by the legislature and signed into law by the executive branch, it can be repealed by another act of the legislature, or declared unconstitutional by the judicial branch. It's not up to the president to decide which laws are going to be enforced. It was wrong of Obama to do this, and it was wrong when every other president who's done it in the past (and there were a lot) did it.It's also a pretty CS was out - like snap said way up above, if it's a bad law it should be repealed, not ignored.

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Richard Payton 3 years, 1 month ago

How come the Liberty poster's comments about the Constitution only appear when their agenda isn't achieved.

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jessanddaron 3 years, 1 month ago

Tom, It is not our fault it is painfully obvious that Obama haters are tired of hearing about Dubya. We didn't make him and Cheney and the administration make so many errors that they are still relevant today. Don't get me wrong, I have met G.W. and he is a very congenial person and to this day (to my knowledge) has never said anything negative about Obama personally. That doesn't mean his voters can forget that he will be up there with worst presidencies of all time when the historians have a say on the matter. He already has the lowest approval record leaving office to date.

And before you go around criticizing the First Lady, you might want to think. She is smarter than you can imagine, made tons of money being a successful attorney...and she went to Harvard. I'll take a tip from her on most things in life before I let Laura Bush try to convey her Christian values to me...

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jafs 3 years, 1 month ago

And, biblical times included a fair amount of polygamy, with patriarchs having multiple wives.

Is that what Cal wants us to "preserve"?

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jstthefacts 3 years, 1 month ago

This comment was removed by the site staff for violation of the usage agreement.

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Tom Shewmon 3 years, 1 month ago

The arrogance of both of the Obamas. Michelle wants to make us all eat a certain way, while she feasts on $1000 dinners in Europe and at white house shin-digs----with enough calories to put a blue whale into cardiac arrest. The whole thing makes me want to hurl all over this keyboard. Obamas gotta go!

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Skullhunter 3 years, 1 month ago

Obama stepped outside-saw his shadow went back in-two more years of unemploment!!!

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rockchalk1977 3 years, 1 month ago

I agree with Newt. The Monarch-In-Chief, Barack Hussein Obama, should be impeached for his obvious abuse of power. Ignoring the separation of powers and using the constitution as toilet paper (Obamacare) are impeachable offenses. DOMA is a good law because, in my view, gay marriage is morally wrong and the majority agrees with me. Impeach The Obama now and wake us from this nightmare!!!

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cato_the_elder 3 years, 1 month ago

Just wait until the new Republican administration in 2013 refuses to defend the legality, constitutional and otherwise, of Obamacare.

I'm looking forward to it.

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Roland Gunslinger 3 years, 1 month ago

The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.

Just sayin'... the precedent was set long before Obama took the office.

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jstthefacts 3 years, 1 month ago

This comment was removed by the site staff for violation of the usage agreement.

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Flap Doodle 3 years, 1 month ago

Bad laws should be repealed, not ignored.

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seeker_of_truth 3 years, 1 month ago

See the Obama haters and Cal lovers are in full rant very early this AM.

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Tom Shewmon 3 years, 1 month ago

Good and bad. I think it's just but one more nail in Obama's political coffin; a very good thing. Cut him loose and let him go rake in a huge fortune Bill Clinton style with high $$ speaking engagements and let him be the new go-to guy for the slobbering liberal media to interview ad nauseum......etc etc.

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cato_the_elder 3 years, 1 month ago

Gotta please his base - just as he tried to do the other day when he said that people with higher incomes should be happy as clams because they'd been "allowed to keep" more of what they'd earned. "Allowed to keep?" That statement again reveals how Obama's government uber alles mind works.

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BornAgainAmerican 3 years, 1 month ago

This President and his administration continues to persue the left wing, ideological agenda. Some of us saw through his centrist head fake. He's still swimming upstream against the will of the majorty.

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Tom Shewmon 3 years, 1 month ago

“Congress has every responsibility to demand President Obama live up to his constitutional obligations.”

Was there ever any constitutional obligations with this disaster of a president in the first place?

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