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stephanie
02-23-2011, 02:14 PM
Article here. (http://www.washingtonpost.com/wp-dyn/content/article/2011/02/23/AR2011022303428.html)

I think this is wrong, for reasons explained at length in other posts, but I imagine many will be happy.

At least I finally don't have to be accused of taking my position just to defend Obama.

handle
02-23-2011, 02:36 PM
Article here. (http://www.washingtonpost.com/wp-dyn/content/article/2011/02/23/AR2011022303428.html)

I think this is wrong, for reasons explained at length in other posts, but I imagine many will be happy.

At least I finally don't have to be accused of taking my position just to defend Obama.

I really don't wanna fish through your posts, If you are going to refer to your defense of this as somehow relevant, maybe you could do us a favor?

stephanie
02-23-2011, 03:14 PM
I don't think I was suggesting it was relevant to anyone who doesn't remember it. Wonderment and I have had some lengthy discussions about it, so I didn't want to comment on the issue (if only to link to the apparent change of policy by the administration) without acknowledging those conversations.

Sorry if that's annoying or coy or whatever. I don't expect you to care what I think and certainly not dig about in prior threads.

For the record, the Obama admin seems to be trying to say that they aren't really changing their position, but that precedent is different in the 1st and 2d Circuits. The precedent is somewhat different, but IMO it's clearly a change of position for political reasons.

Edit: ugh, to be absolutely clear, I'm not at all meaning to suggest that Wonderment said I was only being defensive of Obama, though. That was simply a context to some of the prior discussions.

operative
02-23-2011, 03:29 PM
Hmm...I'm thinking that Obama is worried about losing some base support. Given the latest polling numbers from Gallup, he definitely can't afford to let down the left.

The far better move would've been to just push to repeal it, rather than getting into the gray area of having a bill and not defending it. But since Obama was too busy shoving a mandate down the American public's throats, he couldn't get that done while it was still feasible.

(my ideal solution is for the government just to get out of marriage altogether)

graz
02-23-2011, 04:02 PM
Hmm...I'm thinking that Obama ... was too busy shoving a mandate down the American public's throats ...

I have to jump to the conclusion that you kinda suck at this.
I concur.

handle
02-23-2011, 04:22 PM
I don't think I was suggesting it was relevant to anyone who doesn't remember it. Wonderment and I have had some lengthy discussions about it, so I didn't want to comment on the issue (if only to link to the apparent change of policy by the administration) without acknowledging those conversations.

Sorry if that's annoying or coy or whatever. I don't expect you to care what I think and certainly not dig about in prior threads.

For the record, the Obama admin seems to be trying to say that they aren't really changing their position, but that precedent is different in the 1st and 2d Circuits. The precedent is somewhat different, but IMO it's clearly a change of position for political reasons.

Edit: ugh, to be absolutely clear, I'm not at all meaning to suggest that Wonderment said I was only being defensive of Obama, though. That was simply a context to some of the prior discussions.

Thanks for expanding. I was just trying to figure out what you were trying to say, and digging was kind of a bad idea as it turns out. (ouch my head). But here is a link if anyone is interested. (http://bloggingheads.tv/forum/showthread.php?p=191715#post191715)
I think, with your help, I am a now little less confused.

I originally missed this 'cause I'm not a watcher of Althouse. If I wanted to watch lawyers get drunk I'd go to happy hour at Jake's.

handle
02-23-2011, 04:28 PM
I concur.

Whadaya mean graz? It's a perfectly logical segue, gay rights-obama-HEATHCARE!!!

stephanie
02-23-2011, 04:46 PM
I originally missed this 'cause I'm not a watcher of Althouse. If I wanted to watch lawyers get drunk I'd go to happy hour at Jake's.

Heh.

Here's (http://bloggingheads.tv/forum/showthread.php?t=6119) the other thread where I remember it coming up.

I'm annoyed, because I know there was another where I made the analogy with what's going on with the ACA -- suggesting that a Republican gets elected in '12 and the ACA question hasn't yet reached the SC and perhaps we have a Circuit split, and some district court judge declares the whole thing unconstitutional and stays it. Our GOP president says he (or she) can't argue in good faith that it's constitutional given his (or her) view of the Commerce Clause, etc., and so refuses to appeal.

Is this likely, whatever Obama does here? I think quite possibly yes, depending on who our president is and whether politics are still about as they are now. Would it be right? I'd say absolutely not and would be furious and complaining about abuse of authority and politically refusing to act as president of all and blah, blah. And I mean that very seriously, despite the tone. Given that, as I said before (somewhere, I know I did, and the same argument is hinted at in the linked thread without the health care analogy), I don't see cheering on Obama for doing the same thing, and I thought he was right when he wasn't.

(I want credit for making this health care analogy some time ago, however obvious it is, because it's all over the internet already today.)

Also, from a strictly legal perspective, if you think the legal arguments are clear and distinctions based on sexual orientation are entitled to heightened scrutiny (despite the fact that the SC and 2d Circuit haven't ruled on that and the 1st Circuit, among others, says no), then you should want the issue appealed to the SC. It's awkward as the administration wants to take the position that under the law heighened scrutiny is correct (and I think under the law that's the best answer), but it's not as clear as the adminstration is now saying that Congress has standing and, more important, it's wrong for the executive not to enforce (including defend in court) the laws, absent unusual circumstances I don't see here.

Edit: Politically, though, I know my argument is a big who cares so I'm hardly surprised. Most people are going to focus on the issues themselves and not the process.

bjkeefe
02-23-2011, 04:53 PM
Whadaya mean graz? It's a perfectly logical segue, gay rights-obama-HEATHCARE!!!

Plus, the "shove down throats" cliché, which always resonates big-time (http://www.google.com/cse?cx=007432832765683203066%3Azj_ist-lct4&ie=UTF-8&q=shove+ram+down+throats+&sa=Search&siteurl=www.google.com%2Fcse%2Fhome%3Fcx%3D0074328 32765683203066%253Azj_ist-lct4) with wingnuts' homophobia.

graz
02-23-2011, 05:05 PM
Plus, the "shove down throats" cliché, which always resonates big-time (http://www.google.com/cse?cx=007432832765683203066%3Azj_ist-lct4&ie=UTF-8&q=shove+ram+down+throats+&sa=Search&siteurl=www.google.com%2Fcse%2Fhome%3Fcx%3D0074328 32765683203066%253Azj_ist-lct4) with wingnuts' homophobia.

There's no direct evidence that he's homophobic, it's just that his church elders tell him that marriage is for the straight set only. Therefore god has spoken. Apparently god is opposed to universal healthcare as well. Rahm, ram, shove and jam! ... plus throats.

operative
02-23-2011, 05:27 PM
There's no direct evidence that he's homophobic, it's just that his church elders tell him that marriage is for the straight set only. Therefore god has spoken. Apparently god is opposed to universal healthcare as well. Rahm, ram, shove and jam! ... plus throats.

Well,
God supports a fundamental freedom of choice
Barack Obama and the rest of the leftist tutelary despots oppose freedom of Mandating a purchase of health care is an example of tutelary despotism flying in the face of freedom of choice
You can complete the syllogism.

Don Zeko
02-23-2011, 05:28 PM
Well,
God supports a fundamental freedom of choice
Barack Obama and the rest of the leftist tutelary despots oppose freedom of Mandating a purchase of health care is an example of tutelary despotism flying in the face of freedom of choice
You can complete the syllogism.

Please let this be tongue in cheek. Please please please.

operative
02-23-2011, 05:42 PM
Please let this be tongue in cheek. Please please please.

That was totally not tongue in cheek. Totally.

handle
02-23-2011, 06:05 PM
That was totally not tongue in cheek. Totally.

God supports tongue in cheek, but only one's own tongue, or one man's tongue in one woman's cheek, or vise versa, but tongues only!

handle
02-23-2011, 06:11 PM
Edit: Politically, though, I know my argument is a big who cares so I'm hardly surprised. Most people are going to focus on the issues themselves and not the process.

Most people, like me, probably have a hard time understanding the process. But reading your posts provides some valuable insight.

TwinSwords
02-23-2011, 07:32 PM
Heh.

Here's (http://bloggingheads.tv/forum/showthread.php?t=6119) the other thread where I remember it coming up.

I'm annoyed, because I know there was another where I made the analogy with what's going on with the ACA -- suggesting that a Republican gets elected in '12 and the ACA question hasn't yet reached the SC and perhaps we have a Circuit split, and some district court judge declares the whole thing unconstitutional and stays it. Our GOP president says he (or she) can't argue in good faith that it's constitutional given his (or her) view of the Commerce Clause, etc., and so refuses to appeal.

Is this likely, whatever Obama does here? I think quite possibly yes, depending on who our president is and whether politics are still about as they are now. Would it be right? I'd say absolutely not and would be furious and complaining about abuse of authority and politically refusing to act as president of all and blah, blah. And I mean that very seriously, despite the tone. Given that, as I said before (somewhere, I know I did, and the same argument is hinted at in the linked thread without the health care analogy), I don't see cheering on Obama for doing the same thing, and I thought he was right when he wasn't.

(I want credit for making this health care analogy some time ago, however obvious it is, because it's all over the internet already today.)

I think you may have made the analogy to the ACA later, when it was ruled unconstitutional by Judge Vinson, and not in the earlier conversation that was focused on the Obama DOJ's defense of DOMA. I seem to recall that when Vinson's ruling was handed down, you took the opportunity to point out that if a Republican were president, he could let the ACA die by refusing to defend it in court.

stephanie
02-23-2011, 07:45 PM
I think you may have made the analogy to the ACA later, when it was ruled unconstitutional by Judge Vinson, and not in the earlier conversation that was focused on the Obama DOJ's defense of DOMA. I seem to recall that Vinson issued his ruling, you took the opportunity to point out that it would be possible for a Republican president to let the ACA die by refusing to defend it in court.

Oh, that makes sense.

To be clear (since I may not have been before), I don't actually think it lets the ACA/DOMA die, as I'd be surprised if they didn't end up letting Congress appeal if the DOJ doesn't. (That's clearly what the administration is suggesting, although the law on Congressional standing isn't clear and will have to be resolved.)

stephanie
02-23-2011, 08:01 PM
I'm glad, though I admit that people will have differing views on most of the issues I comment on (I try to be clear when I'm making an argument vs. describing precedent or something of the sort although I'm sure I'm not always).

Wonderment
02-23-2011, 09:02 PM
it's wrong for the executive not to enforce (including defend in court) the laws, absent unusual circumstances I don't see here.


The unusual circumstance is (I would argue) that it's no longer possible for a decent person to argue the government's case in good faith, just as it is today impossible for a decent person to argue in favor of racial discrimination, torture or denying women the right to attend law school.

Let's say, for example, that Bush had played waterboarding the way he played the Patriot Act. He goes not to his secret operatives but to a hysterical Congress right after 9/11. Congress decides that waterboarding is merely "enhanced interrogation" and therefore legal.

Obama gets elected as a human rights defending candidate. His campaign promise is to end torture. Meanwhile, the cases of waterboarded prisoners are working their way through federal courts, and many Republicans are defending the Enhanced Interrogation Law as legal and necessary for our future security.

Obama is now supposed to send Eric Holder to the SC to argue in favor of torture? He's supposed to say that the view of the US government is that waterboarding is not "cruel and unusual punishment", nor is it banned by the Geneva Conventions and the UN Convention against Torture? Most of us would say of course Holder does not defend the law in this case. Torture is simply too universally condemned, beyond the pale, and patently a violation of basic human rights.

For growing numbers of Americans and citizens worldwide, gay and lesbian rights have also reached the point where they must be enshrined in our law as fundamental. Just as we've come to see discrimination against blacks and women as unacceptable, we're similarly advancing against ignorance and bigotry in the area of same-sex relationships.

The Commerce Clause case, then, is not really analogous. Decent people can disagree about how to constitutionally draft a health care reform bill, especially given that the debate there is mostly about language. Redrafting the law, in other words, would remove the objections to its affects (insurance coverage).

Wonderment
02-23-2011, 09:38 PM
Having said all that, as of today he's still "grappling": (http://blogs.reuters.com/frontrow/2011/02/23/obama-grappling-on-gay-marriage-nadler-to-introduce-respect-bill/)

So what is Obama’s personal view on gay marriage? “I would refer you just to his fairly recent statements on that. He’s grappling with the issue,” Carney said.

stephanie
02-24-2011, 05:08 PM
The unusual circumstance is (I would argue) that it's no longer possible for a decent person to argue the government's case in good faith, just as it is today impossible for a decent person to argue in favor of racial discrimination, torture or denying women the right to attend law school.

Under the precedent, I don't believe that's true, it's perfectly possible to make a good faith legal argument for the Constitutionality of DOMA even if one thinks it's a bad law (as I do). Thus, I think the argument to the contrary (at least the one you are making, the adminstration is trying to make a finer distinction) goes way too far and puts one's personal view of what one thinks the law should be over the legal precedent and constitutional arguments.

Also, to the extent the admin is trying to claim that they can't argue that a lower scrutiny should apply in the absence of precedent in the relevant circuit on the issue, that's pretty clearly not true. They can sidestep the issue, point out that it's open and make the arguments they think are in good faith for why lower scrutiny applies, which would include pointing to the circuits who do and the SC consistently refusing to apply (or say it's applying) heightened scrutiny. The interesting thing here is that some would still say that there's a stronger argument to be made (I'd agree with the gov't that it's a bad faith one and probably irrelevant), and on that point amicus would come in anyway. One of the funny things is that this largely seems an argument about nothing, as the admin is basically relying on the idea that someone will be able to appeal. I doubt they'd do this otherwise. Assuming that's right, it seems to me much ado about nothing for the sake of this issue, but a bad choice if one cares about the roles of the various branches of government and not politicizing the judicial function more than necessary.

But we've had this argument before, so unless something new comes up, I'll shut up about it.

Wonderment
02-24-2011, 08:43 PM
Under the precedent, I don't believe that's true, it's perfectly possible to make a good faith legal argument for the Constitutionality of DOMA even if one thinks it's a bad law (as I do).

I don't see how. What is the substance of the argument? Are we going to go back --- with a straight face -- to "nurturing heterosexual marriage and good parenting?" How about "homosexuality is a disorder that should be treated and cured." Or "If we don't draw the line somewhere uncles will be marrying nieces before we know it."

There is some semi-technical argument that it's important to preserve the status quo (DOMA) while the states work out their views on marriage, lest the states get too disoriented or something, but it's awfully weak.

The heightened scrutiny argument, while valid, seems evasive. Everyone knows this isn't really about "heightened scrutiny" vs. "rational scrutiny." It's about politics and society's evolving views on same-sex marriages. Also, Obama cannot repeal DOMA in Congress, and he promised a core constituency to get rid of it. So at a minimum he must appear to be non-hypocritical by refusing to defend it (while he grapples).

stephanie
02-24-2011, 09:53 PM
I don't see how. What is the substance of the argument? Are we going to go back --- with a straight face -- to "nurturing heterosexual marriage and good parenting?" How about "homosexuality is a disorder that should be treated and cured." Or "If we don't draw the line somewhere uncles will be marrying nieces before we know it."

If it's a rational basis test you don't need much. The fact that the state wants to support certain kinds of relationships (marriage), thinks doing so serves some general positive purpose (which is not hard to come up with), and that marriage has been historically defined in a particular way would likely be enough. You only get into a need to come up with some good reason for a distinction if the distinction in question receives heightened scrutiny. (This is also why the "oh, no, what about polygamy" arguments tend to be frivolous. Polygamy probably gets a rational basis test -- it can be attacked as a distinction based on religion, but the fact that marriage was defined in the US as two person came out of a particular understanding of marriage that likely connects to religion, but was not intended at the time to discriminate, so gets looked at as a religiously-neutral statute. Ah, and this is a tangent.)

As I've said lots of times, I think sexual orientation should receive heightened scrutiny (in fact, I think that's the most likely result if one of these issues actually makes it to the SC, and that that's a reason to want the cases to be resolved -- which requires an appeal). But that's not a clear question under the Constitution and under the precedent. The cases used to be uniformly against it and most of the Circuit courts that have reached the question have ruled against it, but that's been changing in recent years, and the SC has avoided the question so far but seemed open in cases like Romer to a heightened scrutiny argument.

Even if it's a heightened scrutiny test it's not that clear cut (although the argument that the current law violates EP becomes a lot stronger), because it depends how equal protection interacts with the historical definition and understanding of marriage.

I think the fact that it's not an open and shut argument can be demonstrated by the fact that until recently the idea that courts would find a right to basically redefine marriage was considered pretty unlikely and even now it's an issue where I think it's hard to predict how the Circuit Courts or SC would come down. That I think gay marriage should be made legal (and DOMA repealed) and, more to the point, that I think the equal protection argument for gay marriage is a good one does not, to me, mean that I can claim that there's not a non-frivolous argument for the other side.

There is some semi-technical argument that it's important to preserve the status quo (DOMA) while the states work out their views on marriage, lest the states get too disoriented or something, but it's awfully weak.

That too, in that there are two parts to DOMA. I don't think the individual states can necessarily defend their decisions to limit marriage to man-woman ones, but if those laws haven't yet been declared unconstitutional, it's strikes me as a weak argument to claim that a law saying that one state doesn't have to recognize another state's marriage law is unconstitutional on that basis. You should start with the underlying laws themselves. The Constitutional question here would be on what basis one state can refuse to recognize a marriage performed in another state -- a broader question than the gay marriage one.

You just seem a lot quicker than I'm comfortable with to jump from "this is my opinion on what the law should be" to "no one can in good faith make an argument for the opposing position." Perhaps I'm misreading you, or perhaps we just have a different way of looking at these things. It's just really important to me to preserve the distinction between what I think the law should be and whether laws I don't like are thereby unconstitutional. The latter is obviously not always the case, and I think people on both political sides are too quick to jump to the latter or construe a judge ruling that a law is constitutional with the judge supporting the law (a pet peeve of mine that I see all the time) and I'm sure all that is going into my strong feelings here.

stephanie
02-24-2011, 10:09 PM
The heightened scrutiny argument, while valid, seems evasive. Everyone knows this isn't really about "heightened scrutiny" vs. "rational scrutiny."

I could have made the above post shorter had I noticed this bit instead of focusing on your question. I could not possibly disagree with you more here. It absolutely is about heightened scrutiny vs. rational basis. Most distinctions get rational basis (i.e., those based on income). Thus, the gov't usually doesn't have to come up with any reasons (beyond the public support, the reasons given for passing the law) to justify them, and challenges to them on EP grounds are frivolous. It's only a very few distinctions that get heightened (or strict) scrutiny, and in those cases the test that must be passed are quite rigorous.

The key unresolved legal question for sexual orientation cases is what kind of scrutiny is applied. Initially the courts all said rational basis, but as I said above there are signs (including district and state court rulings and what people read into Romer and Lawrence) that this is changing. But this is an extremely important question that has an effect beyond the specific issue before it, and it relates to how we think of these laws. It really should be resolved. (And despite my arguments here, I do think this is the toughest issue, because the policy of Obama's DOJ probably is, when possible, on the side of granting some form of heightened scrutiny. Indeed, this is the point Holder made and even though I specifically disagree with some of what he said on this topic, their position and reason for differentiating their obligations in the 2d Circuit from those in the 1st aren't baseless. Perhaps I will end up coming around to defending Obama.)

So at a minimum he must appear to be non-hypocritical by refusing to defend it (while he grapples).

Your connecting whether he defends DOMA or not with his personal view on gay marriage is again a key disconnect between our positions. What Obama thinks of gay marriage strikes me as irrelevant to the legal question. If the distinction in question clearly violates EP, that is so whether Obama personally thinks gay people aren't really married in the eyes of God and shouldn't marry or whatever such position he could take, whether he thinks the best state law would be civil unions, or whether he thinks all 50 states should rush to legalize gay marriage. Similarly, it would not matter if the president was a Republican or a Dem. These are simply two separate issues and it's the conflating them that I'm taking issue with and probably the part of this issue that drives me to keep discussing it.

Wonderment
02-24-2011, 11:01 PM
You just seem a lot quicker than I'm comfortable with to jump from "this is my opinion on what the law should be" to "no one can in good faith make an argument for the opposing position." Perhaps I'm misreading you, or perhaps we just have a different way of looking at these things. It's just really important to me to preserve the distinction between what I think the law should be and whether laws I don't like are thereby unconstitutional. The latter is obviously not always the case, and I think people on both political sides are too quick to jump to the latter or construe a judge ruling that a law is constitutional with the judge supporting the law (a pet peeve of mine that I see all the time) and I'm sure all that is going into my strong feelings here.

I don't think we're actually very far apart in our views on the law. You always manage to almost persuade me :)

I recognize that the administration is in a tough bind when it has to defend in court ideas it argues against in public debate.

I think you find such an outcome more palatable than the alternative. I get that.

You seem to view it as a duty, the way a defense attorney has to provide the best possible defense for a client, even when s/he knows the client is guilty of a heinous crime.

I think it gets a lot more complicated, however, when you have an elected official who makes a principled promise to a constituency and then fights that very constituency and that very principle in court. When human rights advocates come to the President and say the following, Obama needs a better answer than, "That's the way our system works."

"I cannot overstate the pain that we feel as human beings and as families when we read an argument, presented in federal court, implying that our own marriages have no more constitutional standing than incestuous ones" (Joe Solomense of Human Rights Campaign)

The better answer, I believe, is Holder's letter last week on DOMA. The discretion not to defend the law exists (unlike in the case of the criminal defense attorney), and it's appropriately exercised. The message is clear and the federal appeals process has not been subverted.

stephanie
02-25-2011, 12:10 PM
it's appropriately exercised. The message is clear and the federal appeals process has not been subverted.

This is where we disagree, but I don't have anything new to say, so will drop it.

I do suspect that we tend to see the many of same issues involved here as important but just prioritize them quite differently.

bjkeefe
02-25-2011, 03:56 PM
And the right is reacting with equanimity!

Opinion ranges from Mike Huckabee (http://www.cbsnews.com/8301-503544_162-20035611-503544.html), who pronounces that this "may destroy him [Obama], may destroy his credibility, may destroy his campaign and candidacy and ultimately his term in office," to FoxNews's Monica Crowley (http://www.dailykos.com/story/2011/02/23/948938/-Fox-Calls-Obama-Dictator-for-not-defending-DOMA), who characterized the decision as "a form of dictatorship."

Also, B'heads Ramesh Ponnuru and McMegan Ardle are Very Concerned (http://alicublog.blogspot.com/2011/02/not-bad-not-bad-at-all.html).

bjkeefe
02-25-2011, 04:31 PM
And the right is reacting with equanimity!

Opinion ranges from Mike Huckabee (http://www.cbsnews.com/8301-503544_162-20035611-503544.html), who pronounces that this "may destroy him [Obama], may destroy his credibility, may destroy his campaign and candidacy and ultimately his term in office," to FoxNews's Monica Crowley (http://www.dailykos.com/story/2011/02/23/948938/-Fox-Calls-Obama-Dictator-for-not-defending-DOMA), who characterized the decision as "a form of dictatorship."

Also, B'heads Ramesh Ponnuru and McMegan Ardle are Very Concerned (http://alicublog.blogspot.com/2011/02/not-bad-not-bad-at-all.html).

And not to be outdone, Gay Patriot (aka Bruce Carroll) (http://www.sadlyno.com/archives/34649.html) thinks this means Obama should be impeached.

Wonderment
02-25-2011, 05:07 PM
This is where we disagree, but I don't have anything new to say, so will drop it.
I do suspect that we tend to see the many of same issues involved here as important but just prioritize them quite differently.

Yes, I think that's right. If I were an appellate court judge, I'd probably view things more the way you do. As a gay rights activist, I can't though.

bjkeefe
02-28-2011, 11:49 AM
... or so it is claimed (http://www.bloomberg.com/news/2011-02-28/a-363-000-tax-bill-to-widow-led-to-obama-shift-in-defense-of-marriage-act.html):

A $363,000 Tax Bill to Widow Led to Obama Shift in Defense of Marriage Act

Edith Windsor and Thea Spyer had a 40-year engagement and a two-year marriage, starting with a wedding in Canada recognized under the laws of New York, where they lived, and ending when Spyer died two years ago.

Her death triggered a $363,053 federal tax bill from which her widow would have been exempt had she been married to a man, because the federal Defense of Marriage Act bars the U.S. government from recognizing same-sex unions.

Windsor’s lawsuit challenging the constitutionality of the act was one of two cited by the Obama administration to justify its decision to stop defending the law. [...]

(h/t: @koxinga21 (http://twitter.com/koxinga21/status/42240347073417216))

Wonderment
02-28-2011, 11:58 PM
Heres' a quick historical overview (http://www.nytimes.com/2011/02/27/weekinreview/27liptak.html?ref=us) of the judicial-executive issues at play. The ending is ironic:

....[one expert] agreed exceptions to the usual duty to defend statutes should be rare. But the infrequent principled stance is not worrisome, he said, so long as the courts receive good briefs on all sides and have the last word.

That is what seemed to have happened in 1990 in another case on a politically divisive issue, after an acting solicitor general told the Supreme Court that the Justice Department would not defend a Federal Communications Commission affirmative-action program because, in language echoing Mr. Holder’s, it “could not withstand the exacting scrutiny required by the Constitution.”

The commission filed its own brief defending the program, and the court upheld it. The acting solicitor general who refused to defend the program, John G. Roberts Jr., is now chief justice of the United States.

bjkeefe
03-01-2011, 12:09 AM
Heres' a quick historical overview (http://www.nytimes.com/2011/02/27/weekinreview/27liptak.html?ref=us) of the judicial-executive issues at play. The ending is ironic:

Heh. That is ironic.

Wonder why we haven't heard the right wing yelling about signing statements lately ...

TwinSwords
03-01-2011, 12:31 AM
Heres' a quick historical overview (http://www.nytimes.com/2011/02/27/weekinreview/27liptak.html?ref=us) of the judicial-executive issues at play. The ending is ironic:

I've largely been persuaded by Stephanie's reasoning in this debate -- that the proper role of the Executive is to enforce the law -- but your historical footnote is fascinating, for sure.

bjkeefe
03-01-2011, 03:53 AM
I've largely been persuaded by Stephanie's reasoning in this debate -- that the proper role of the Executive is to enforce the law -- but your historical footnote is fascinating, for sure.

For the record: The Obama Administration is not (http://www.prospect.org/csnc/blogs/adam_serwer_archive?month=02&year=2011&base_name=newt_gingrich_doesnt_have_the) giving up enforcing the law.

stephanie
03-01-2011, 12:55 PM
Heres' a quick historical overview (http://www.nytimes.com/2011/02/27/weekinreview/27liptak.html?ref=us) of the judicial-executive issues at play.

I generally agree with Dellinger's statement, but would add that there has to be some clear and non-partisan basis for claiming that a particular case is an exceptional one. Something that goes beyond the desired results.

I was thinking about this, and I see the arguments (the political ones, as the legal ones I've heard are more nuanced) falling into a few camps. (Note: this applies only to unresolved legal issues, like the one currently. Not to statutes that are on their face unconstitutional under the existing law and precedent, so there's no legal issue to resolve.)

1. Those who think it's good not to appeal any DOMA decision that finds it unconstitutional based on the hope that that would result in a resolution of the issue without requiring further litigation or the risk that an appellate court will reverse. This, to me, is the worse possible argument, and is probably pointless, as it's most likely that someone will be found to have standing to appeal. (It's also the one most similar to what happened in CA, although the issues in CA are different because of the law relating to ballot initiatives.) I'll note that Dellinger's argument doesn't leave room for this position, as he basically says that it can be okay as long as someone is raising the arguments the DOJ otherwise would be -- someone has standing and the ability to write high quality briefs.

2. Those who think the government shouldn't appeal because of a need to keep its hands clean and not make arguments that are seen as wrong (and morally incorrect), even though those arguments may well be found to be correct under existing precedent (and certainly are good faith arguments). I think this argument is inconsistent with how our system works for basically the reasons discussed already.

3. Those who think the government shouldn't appeal because the DOJ has an important position with regard to an unresolved legal issue (here, that distinctions based on sexual orientation should receive heightened scrutiny) and it would be wrong for the DOJ to make legal arguments inconsistent with that position. This is, I think, the strongest argument for what the administration is doing and is also pretty similar to the reasons it has given (including the reason for distinguishing between the 1st Circuit case -- where the scrutiny issue had been resolved and thus was arguably not in play -- and 2d Circuit cases). I have some issues of disagreement with the way Holder explained this still -- in particular, I think it's possible for the gov't to say that we think that heightened scrutiny applies and thus the ruling only stands if X, Y, and Z, and yet still make a good faith argument for that, and then to add in an argument that says "in the alternative, if the SC determines that the rational basis test applies, the case is even clearer" and then goes on to make that argument. That would allow the DOJ to defend the law without contradicting it's policy position.

This may sound like an overly legalistic distinction (although I wouldn't agree), in that my solution here would mean that the gov't was failing to address one of the arguments for its position -- the argument that the rational basis test should apply -- but I don't think that the executive branch is required to go that far. Moreover, as there would be no problem with standing, it would make it easy for others to file amicus briefs raising this issue if they liked.

Wonderment
03-01-2011, 07:01 PM
Separate subject to some extent, but how vigorously do you think Holder should argue a case he disagrees with on principle? In other words, does he have to argue to the best of his ability, even though that might mean comparing homosexuality to incest, as the DOJ did earlier in Obama's tenure?

If he fails to argue to the best of his ability, wouldn't he be subject to criticism for throwing the case, tipping the scales toward repeal of DOMA

I believe, for example, that a defense attorney has a responsibility to her client to create a plausible alternative explanation of a crime that would exculpate the client, even when a) the attorney is sure beyond a reasonable doubt that the client is guilty and b) the alternative theory casts innocent people as possible suspects (as we've all seen on endless Law & Order episodes).

I am less comfortable with the arguments used to defend DOMA, however. The distinction is, in my view, that the defense attorney is just a private citizen loyal only to his client, while Holder and Obama are accountable as political actors whose public political assertions should be consistent and not contradictory.

stephanie
03-01-2011, 07:58 PM
Separate subject to some extent, but how vigorously do you think Holder should argue a case he disagrees with on principle?

I think this relates to my third position and the distinction I make in talking about it.

As a knee-jerk reaction, I don't see that his personal disagreement should matter if he's taken a job that requires him to uphold the position of the US (although there generally is some discretion in determining what that is, which is the issue I'm trying to flesh out in a nuanced way -- the discretion is not "I argue only for results I personally desire," obviously).

But I also think it's appropriate for the US DOJ to take a position on an open legal question and support that position when it comes up, and that the scrutiny to be applied to distinctions based on sexual orientation is such a position. Which is why I think I'd be fine with the DOJ taking the position that the proper standard is heightened scrutiny and thus the question is whether the statute stands even then (and arguing that it does), with just an additional argument that if the standard applied is rational basis the question is even clearer.

One could say that this is similar to what I've been criticizing the adminstration for, but I would disagree. I think you can represent your client (the US gov't here) within the context of an overall strategical choice that may preclude some arguments that can be raised. Moreover, it avoids the potential standing problem and others can push the scrutiny question and argue that contrary to the US gov't or the plaintiff the right answer is that rational basis applies, that's what most courts that have addressed it have held, that's what the relevant considerations would dictate (I disagree with this, but it's an argument I could see someone ethically making).

The argument on the other side, of course, is that rather than have the DOJ raise an only partial defense, it's better to have a defender who will go all out, even if that means that it's not the DOJ. Assuming you have standing for Congress here, I'm not totally comfortable with this as other than an unusual circumstances thing, but I see the logic in it and am okay if, as I said, it's rare and based on pretty clear-cut identifiable circumstances that can't be abused to basically have the DOJ defend (in appeals) only laws the president would have supported.

This came up somehow in connection with the CA case, because in theory it's those who want the statute who aren't served if the defenders are doing so against their actual views, as they may fail to raise some arguments which others think would be helpful or, especially, fail to try the case as effectively as possible -- the argument that some made re the CA statute. I don't buy this -- it happens all the time, lawyers aren't assumed to need to agree with their client to properly represent his position, to the extent the legal arguments in the briefs are restricted as I said it's in the types of cases/issues that attract amicus briefs. But it does present some interesting (to me) issues.

In other words, does he have to argue to the best of his ability, even though that might mean comparing homosexuality to incest, as the DOJ did earlier in Obama's tenure?

No, he does not have to compare homosexuality to incest. He certainly doesn't have to make the Santorum-esque argument that if homosexuals have a right to marry there's no legitimate basis to say brothers and sisters cannot or humans and dogs or whatever. However, I think the way that the law uses analogies is often miscontrued. In a legal brief or argument bringing up the question of what the plaintiff's position means for, say, polygamy is appropriate and does not mean that you are saying that homosexual relationships are the same as polygamy (or incest, if that's the example used, although it seems to me a weaker one).

More significantly, I don't think he can ethically make arguments that he believes are factually untrue -- i.e., to claim the evidence indicates that recognizing homosexual marriage would harm children or whatever. (I'm assuming that this is Holder's understanding of the evidence.) Similarly, defense attorneys certainly cannot throw a case or fail to make existing arguments, but they also cannot lie about what the evidence is or allow perjury. But in any case lawyers, especially civil lawyers and especially those who represent a particular client in numerous cases (and I would analogize this to representing the government) can make choices about what arguments to raise based on overarching views about what the law should be and that's much more so when the client is the government. (Prosecutors having specific obligations to consider more than just winning, for example, although civil cases -- like this one -- are not completely served by the criminal comparison here.)

Wonderment
03-01-2011, 11:15 PM
The DOJ is still stuck between a rock and a hard place, I think.

I understand your reasoning, but I'm not sure if I buy the idea that DOJ lawyers can simply decide not to go Full Bore Santorum. If they don't go for the jugular, it's obvious that they pulled punches. If they do, they're going to face the wrath of every civil rights activist in the country.

They can't really abstain and pass the case off to Congress either. That's as if the team's star player merely refuses to play instead of striking out on purpose. It's still bad.

So I get the dilemma for Holder and POTUS. I'm sure they put a few dozen great legal minds together -- in addition to Obama and Holder themselves -- to come up with the current plan (taking into account political as well as ethical issues). It's not perfect though. Heightened scrutiny gives them some cover and some wiggle room, but they're going to get slammed whatever they do.

I do think it's (not perfectly) analogous to a court-appointed criminal defense attorney who has to get her rape client to walk by fingering the (innocent) bf or husband as an alternative suspect. There is no easy or certain answer to that ethical quandary.

Wonderment
03-02-2011, 02:03 AM
You're not going to like this, Stephanie! (http://latimesblogs.latimes.com/lanow/2011/03/california-supreme-court-refuses-to-speed-up-ruling-on-key-issue-in-gay-marriage-battle.html)

For foreigners (non-Californians), Kamala Harris squeaked by in November to win election as our Attorney General, succeeding Jerry Brown, who became governor in a landslide.

bjkeefe
03-02-2011, 02:43 AM
You're not going to like this, Stephanie! (http://latimesblogs.latimes.com/lanow/2011/03/california-supreme-court-refuses-to-speed-up-ruling-on-key-issue-in-gay-marriage-battle.html)

For foreigners (non-Californians), Kamala Harris squeaked by in November to win election as our Attorney General, succeeding Jerry Brown, who became governor in a landslide.

Related: Sen. Kirsten Gillibrand (D-NY) has announced (http://www.huffingtonpost.com/rep-kirsten-gillibrand/the-next-step-toward-equa_b_829802.html) this: RepealDOMA.com (http://www.repealdoma.com/).

(h/t: Lez Get Real (http://lezgetreal.com/2011/03/senator-gillibrand-sets-up-site-to-help-end-doma/))

stephanie
03-02-2011, 12:58 PM
I'm not sure if I buy the idea that DOJ lawyers can simply decide not to go Full Bore Santorum.

That's the part I see as least difficult. It's something lawyers face all the time, making decisions about what kinds of arguments are appropriate and also what will be effective vs. losing you credibility with the judge. I don't see a Full Bore Santorum argument (I love that phrase) likely to be effective with any judge who wouldn't already be thinking it, so I don't even see a practical argument in favor of such tactics. Indeed, certain of the arguments that I find most disgusting from opponents are also the kinds of things I expect that judges will see all the time, so read with some initial skepticism (and the same is true for a lot of the arguments that I'm inclined to make too -- as I tend to do more defense, I can say that I second-guess myself whenever I'm about to start going on about people looking for a deep pocket or fishing expeditions or the like).

But in any case, I'm not talking about making a weak argument but being really clear about the limitations of the gov't's position -- the DOJ agrees with the Plaintiff that heightened scrutiny should apply, but even under that standard.... In the alternative, if this Court is to hold that rational basis applies, the case for the US's position is even stronger....

That does leave the onus on others (or the Court itself) to make the argument for why the rational basis should apply, which is why I said that one could see this as a distinction without difference (although I obviously disagree) and I do agree that the DOJ is in a difficult position here, through no fault of its own.

stephanie
03-02-2011, 01:00 PM
You're not going to like this, Stephanie! (http://latimesblogs.latimes.com/lanow/2011/03/california-supreme-court-refuses-to-speed-up-ruling-on-key-issue-in-gay-marriage-battle.html)

I don't know what I think of it, but it is interesting.

Wonderment
03-04-2011, 06:38 PM
The latest move. (http://www.latimes.com/news/nationworld/nation/sc-dc-0305-marriage-law-web-20110304,0,6151015.story)

stephanie
03-04-2011, 06:55 PM
The latest move. (http://www.latimes.com/news/nationworld/nation/sc-dc-0305-marriage-law-web-20110304,0,6151015.story)

Boehner:

It is regrettable that the Obama administration has opened this divisive issue

O-Kay. Whatever you say, John.

bjkeefe
03-04-2011, 06:58 PM
The latest move. (http://www.latimes.com/news/nationworld/nation/sc-dc-0305-marriage-law-web-20110304,0,6151015.story)

House Speaker John Boehner (R-Ohio) said Friday that that he and other House leaders plan to appoint a lawyer to defend in court the 1996 law that says the federal government will not recognize gay marriages or give federal benefits to gay couples.

"It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy," Boehner said.

Is it really possible for anyone to be that stupid? [Added: jinx! (http://bloggingheads.tv/forum/showthread.php?p=199864#post199864)]

Second: Did the so-called Librul Media reporter offer any informative context? Such as ... I dunno ... a mention that Boehner and colleagues have done precisely nothing to promote jobs since they reacquired the majority?</rhetorical>

bjkeefe
03-04-2011, 08:36 PM
The latest move. (http://www.latimes.com/news/nationworld/nation/sc-dc-0305-marriage-law-web-20110304,0,6151015.story)

A fine response (http://twitter.com/NancyPelosi/status/43777370448084992):

NancyPelosi (http://twitter.com/NancyPelosi) I voted no on #DOMA (http://twitter.com/search?q=%23DOMA) in '96 and I'll vote no again on defending this indefensible statute http://go.usa.gov/44D

Wonderment
03-04-2011, 09:36 PM
O-Kay. Whatever you say, John.

We should have a contest for dumbest and/or most outrageous Republican comment of the day.

Much as I'd like to go with Boehner today, I might have to vote for Huckabee:

"I didn't attack Natalie Portman."

The Huckster has been on a fabulous roll this week, starting with Obama "having grown up in Kenya..."

bjkeefe
03-15-2011, 02:07 PM
Sen. Kirsten Gillibrand would like you to sign a petition (https://secure.democracyforamerica.com/activities/471t):

Last year I helped lead the effort to overturn "Don't Ask, Don't Tell" and I'm thrilled that very soon, LGBT Americans will be able to serve openly in our armed forces. This is a big victory for equality, but there's still so far we have yet to go.

I believe every American should be able to marry the person they love. Yet in 1996, the so-called Defense of Marriage Act (or DOMA) codified the discriminatory notion that marriage is only between a man and a woman.

DOMA denies same-sex couples the basic privileges enjoyed by straight couples, and prevents state-approved legal marriages from being recognized across the country.

https://secure.democratsenators.org/o/44/images/KEG---EM---Repeal-DOMA---3042014.jpg (https://secure.democracyforamerica.com/activities/471t)

This is wrong.

If we are to achieve full marriage equality for all, Congress must repeal DOMA now.

That’s why I'm proud to partner with Democracy for America to make sure the repeal of DOMA becomes a reality.

Please sign your name here to join the nationwide movement to repeal DOMA and allow all loving couples to enjoy the rights and privileges of marriage.

Recently, President Obama ordered the Justice Department to stop defending DOMA in federal court. This is a huge step, but the fact is that as long as DOMA remains on the books it will continue to be enforced until Congress repeals it legislatively.

That's why tomorrow, I will join Senator Feinstein as we introduce DOMA repeal legislation in the U.S. Senate.

Can I count on you to join us on the frontlines of this fight?

Please sign here to join the fight for marriage equality by urging Congress to repeal this discriminatory and unconstitutional law.

It's simply not right that my husband and I should be able to enjoy rights and privileges that LGBT Americans are denied.

Thank you for everything you do to ensure marriage equality for all Americans,

-Kirsten

Sign here (https://secure.democracyforamerica.com/activities/471t), if you like.