Obama action sidesteps court

March 2, 2011


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?


cato_the_elder 7 years 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.

Flap Doodle 7 years ago

Bad laws should be repealed, not ignored.

cato_the_elder 7 years 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.

jafs 7 years ago

Were you equally critical of Bush for the same things?

jafs 7 years ago

DOMA is a bad law, because discrimination is wrong.

And the majority is often wrong on matters of morality, and/or constitutionality.

jafs 7 years ago

Well, if it's all opinion, then the fact that a majority holds an opinion doesn't make it right.

And, many people seem unaware of the checks and balances that our system has, and is designed to have, and speak about the "will of the majority" as if that's all that matters.

That's simply wrong - we have a 3 part system of legislative, executive, and judicial branches, and determining constitutionality is up to the judicial branch, more specifically the Supreme Court, not up to a majority vote on the matter.

Kirk Larson 7 years ago

Serial adulterer Newt Gingrich has nothing valid to say about the defense of marriage. He is its' worst sort of abuser.

repaste 7 years ago

You don't follow laws you don't like, "I'll set it at 80", why would you follow her advice? At our current rate there will not be enough money to pay for all heart stints and insulin shots we will need, the cost will exceed our total budget. Have a cheeseburger.

jafs 7 years ago

Well, if you look at the vote counts, it was passed by a large majority in the House and Senate.

If those folks are representing their constituents, then a large majority of Americans are opposed to gay marriage.

Of course, that doesn't make them right, even if it's true.

jafs 7 years ago

We don't live in a simple "majority rules" country.

We have a 3 part system of checks and balances - executive, legislative, and judicial.

And, there are certain guaranteed constitutional protections, that the majority does not have the right or power to take away.

If the majority voted to institute slavery, would that be ok with you?

If marriage is a fundamental right, then denying gay folks the ability to marry is simply wrong, according to our system, even if the majority thinks it's ok.

Loving vs. Virginia held that marriage is in fact a fundamental right, one not to be abridged lightly.

None of the arguments against gay marriage that I've heard make a strong enough case to deny it.

jafs 7 years ago

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

Is that what Cal wants us to "preserve"?

jessanddaron 7 years 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...

monkeyhawk 7 years ago

Whoops, we forgot to include these tidbits:

"In 2006, the Chicago Tribune reported that Mrs. Obama’s compensation at the University of Chicago Hospital, where she is a vice president for community affairs, jumped from $121,910 in 2004, just before her husband was elected to the Senate, to $316,962 in 2005, just after he took office." Looks like that raise was worth it.

h/t Amanda Carpenter - This will definitely be developing, as they say. Obama's earmarks released - and one early look:

Obama Requested $1 Million For Construction Of A New Hospital Pavilion At The University Of Chicago. In 2006, Obama requested that the University of Chicago receive $1 million to support its Construction of New Hospital Pavilion. For more than 75 years, the University of Chicago Hospitals (UCH) has provided state of the art medical care on the South Side of Chicago."


And this:


It would appear that Michelle Obama and her husband’s political cronies have been up to more than giving sweetheart deals to donors. According to the Chicago Sun-Times:

Sen. Barack Obama’s wife and three close advisers have been involved with a program at the University of Chicago Medical Center that steers patients who don’t have private insurance — primarily poor, black people — to other health care facilities."


jessanddaron 7 years ago

FYI, fringe blogs do not count as credible news sources.

monkeyhawk 7 years ago

Do your own homework - it's common knowledge. You only look (more) ignorant when you attack the source rather than the report.

Kirk Larson 7 years ago

Yeah, it looks like they were actually doing the uninsured patients a favor by taking them to public clinics where they could get treatment but would not incur catastrophic debt. Too bad there isn't a public option or single payer system so hospitals would not have to go to these efforts to get people health care without burdening them with enormous debt, don't you think. Oh, that's right, you don't think.

Richard Payton 7 years ago

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

Peacemaker452 7 years ago

The Constitution clearly tells the President that he will “take Care that the Laws be faithfully executed” but it also requires him to take an oath “to the best of my Ability, preserve, protect and defend the Constitution of the United States."

The Constitution does not give Congress the power to define marriage. DOMA was based on the “full faith and credit” clause which the Feds stretched passed its limits. Any rational interpretation of the Constitution would find this law severely lacking.

So, for those of you who believe that only the Supreme Court can decide the Constitutionality of a law, the President and his Justice Dept. must support it until the Court says otherwise.

I do not believe that the Constitution gives that power to the Court and I believe in the oaths that I take therefore I support the President’s decision if it is based on the unconstitutionality of the law. If his decision is based solely on politics, he is on his own.

jafs 7 years ago

Actually, the "full faith and credit" passage seems more likely to support gay marriage, in that one state would have to give that faith and credit to a marriage from another state.

Peacemaker452 7 years ago

I agree, DOMA gave a specific exemption to “full faith and credit” for gay marriage. Congress does not have the authority to pass a law that grants exceptions to the Constitution and the law is clearly unconstitutional.

notajayhawk 7 years 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.

Peacemaker452 7 years ago

Nota, What about the part in the President’s oath to “preserve, protect and defend the Constitution of the United States”? The President has a duty to not enforce laws that are contrary to the Constitution just like a military officer has a duty to not carry out an order that is unconstitutional. Despite what people keep repeating, nowhere in the Constitution does it give the power to decide the constitutionality of a law to the Supreme Court. The court gave themselves that power in Marbury Vs. Madision. If a President decides to take this path the only recourse would be an impeachment. If Congress thinks they are right they would be welcome to attempt to impeach the President for ignoring their law just like a military officer would have to face an inquiry and possible a courts martial if he did not carry out an order.

Kirk Larson 7 years ago

Been over this a hundred times. The President and Holder have said they will enforce the law as it stands. They don't, however, have to defend the law if it is challenged in court. Think on it. Let it sink in. He is upholding his oath.

weeslicket 7 years 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.

jafs 7 years ago


That would be a pretty easy way to solve it, by separating the secular union from the religious one.

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