Today has been a great day for homomentum, as SCOTUS has struck down part of the United States’ Defense of (heteronormative) Marriage Act and overturned California’s Proposition 8.
The guts of the first decision striking down part of the DOMA was that the federal government is not allowed to discriminate on the basis of sexual orientation when it comes to providing the benefits of marriage. Proposition 8 was struck down on a technicality: standing.
For people who claim to hate government spending so much, they sure had no difficulty finding the money to triple the budget earmarked for defending the
Preservation of Bigotry Defense of (heterosexual) Marriage Act.
The United States Justice Department has announced that it considers the Defence of Marriage Act to be unconstitutional, and is therefore no longer going to be defending (Update 2011–02–24: only part of the DOMA will be undefended) in court.
My first thought is that this is excellent news. The DOMA is an appalling, discriminatory law, and this move makes it likelier that the DOMA will be struck down. This will help to enhance the spread and the homomentum of marriage equality.
On the other hand, I have concerns that declining to defend a law sets a bad precedent. First of all, one would have to be consistent in their view of the DOJ refusing to defend a law they agree with, like a future Republican administration refusing to defend the health care reform law. To take different views in these cases is to engage in incoherent special pleading.
Furthermore, allowing the executive to refuse to defend a law gives them a sort of backdoor veto. If no one responds to a lawsuit, the plaintiff wins by default. Hence, all a hostile executive needs to do to repeal a law they dislike is for someone to challenge it, and then refuse to defend it. Voila, law struck down.
Merely requiring that the executive defend all laws is not enough, because of a major loophole. The executive could merely defend the law, but deliberately do a piss–poor job of it, and accomplish the same thing.
Update 2011–02–24: What the current situation entails then, is that Congress must defend the law. Although this does not automatically mean tha there is now a “backdoor veto”, should congress decline to defend the law my above assertion applies. In addition, there is a long history of executives refusing to defend laws they believed to be unconstitutional.
A US Federal judge, in two companion cases, has ruled that part of the Defense of Marriage Act is unconstitutional. This is not necessarily wide–ranging, as the court in these rulings has about as narrow a jurisdiction as you can get.
Better have a sturdy handy, as the religious wrong and associated right–wingers will freak out at the idea that a small number of same–sex couples, that they don’t even know, never interact with, and that have nothing to do with, will now gain more of the benefits of marriage than they had before.
Picture from the Unrepentant Old Hippie.
In contrast to its position earlier this year, the United States Department of Justice has issued a new brief in its defense of the Defense of Marriage Act. The brief defends the law while expressing opposition to it and at the same time countering common arguments against same-sex marriage. Dale Carpenter at the Volokh Conspiracy has a discussion, and I quote this gem from it (emphasis added):
[After a quote from the brief] …This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage….
Personally, I think that the DOJ is trying to have it both ways; it is trying to appease LGBT rights activists by shooting holes through opponents’ arguments, while at the same time defending the act in order to appease social conservatives. In the end, I think that the likeliest result will be that the DOJ pisses off both sides. That’s what a “purple” action is likely to do.
History repeats itself:
Just like with the economic stimulus package, a number of state-level Republicans are backing Tenth Amendment resolutions asserting that any future health care plan violates states’ rights.
This all raises an interesting question: how many of these “states’ rights” Republicans show the same fervor in opposition to the PBABA and DOMA?