I may be completely off-base here, but I get the feeling that Obama feels he needs to make some big splashes to combat the all-out wacko attack from the right wing.  He needs to show that he can make some moves, so that when the nation is split from all the teabaggery, he has a solid foundation to stand on.  And I’m all for it, it’s about time democrats show some backbone.

I see a cuning plan here - Michelle suggests eating veges to get wingnuts to consume fats, and then Barack says gays can marry to get their blood pressure up…

The 2nd Circuit has never declared a level of analysis for sexual orientation discrimination (and there’s actually no firmly established federal level either). So, the fact that a case was filed in this district allowed them to make a jurisdictional/procedural argument.

But, I gotta wonder what the political calculations driving this are. They’ve been more than willing to use rational basis in other cases, as half-hearted as some of those efforts were. (The DADT “defense” was little more than showing up—there was no “vigorous” defense.)

Shit ain’t dead yet, because there will DEFINITELY be some Republican Congresscritters stepping in to amp up the gay hate. But, this was good.

In other news: The Maryland Senate passed a marriage equality bill, and Hawaii Gov. Neil Abercrombie is signing a Civil Unions bill (that includes different-sex couples) today.

Pretty good day.

As basically everyone knows, the wild card vote should gay marriage come in front of the court is Anthony Kennedy.  I’ve been fairly confident for a long time now that Kennedy would vote to strike down bans against same-sex marriage and legalize it across the country, because he wrote the decision for Lawrence v Texas

And I still think you’re crazy.  The Court usually waits for more of a critical mass than five states, with two taking away the right after it was enacted….And, let us remember that Kennedy is the Carhart “We need to protect women from themselves.” What’s to say he wouldn’t pull a “we need to protect same-sex couples from the bigotry of the majority so separate and equal is hunky dory?”

If the 2nd Circuit never has any rulings supporting DOMA, and other Circuits do, then that creates a Circuit split that (1) makes it more likely the Supreme Court will take up the case and (2) can serve has a procedural hook for the Supreme Court to grant cert (hear the case). 

Jill at Feministe has some good legal analysis, especially at comment 4.  Basically that this move prevents the 2nd circuit from creating decisions upholding DOMA which would be then used to support DOMA in the Supreme Court.  The lack of rulings upholding DOMA in the 2nd Circuit can also be used by judges in other circuits to show that society is changing, which is a hook that can be used to overturn precedent (like upholding DOMA).

I think it comes down to four words: “full faith and credit”. Sounds like the DOJ realized that if they pushed the issue, especially with support for gay marriage on the rise, that was going to wind up being what struck it down.

I hate to be a negative ned, but Obama most certainly did not say they’re going to stop defending DOMA. They’re only going to stop defending section three, the section that defines marriage in Strictly heterosexist terms:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

That’s all well and good, but Holder expressly states in the full statement:

““The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” Holder said. “Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”

Ahem. ‘such cases’.

It’s obvious they don’t really have an issue with section two - that’s the part which flagrantly violates Full Faith and Credit by allowing states to refuse to recognize legal marriages contracted in other states. And I say it’s obvious that because Holder himself says precisely that - they’re going to keep defending the worst part of DOMA.

So, Obama is bravely defending the right of gay people to live free of semantic bigotry, but continuing to do jack/shit to de facto, de jure discrimination.

BTW, I probably should mention that DADT remains in place despite the bill that repealed it, while Obama and the DoD drag their feet shamefully:

http://en.wikipedia.org/wiki/Don’t_ask,_don’t_tell#Implementation

I won’t be shocked if, surprise surprise, they still haven’t implemented it in time for the 2012 election. Hell, for all I know, this out-of-the-blue, and completely suplerfluous change in policy re: DOMA is due to just that.

Point: I am unimpressed, and will remain so until this proves not to be just more of the same empty promises we’ve enjoyed for the last 2 years.

I think it comes down to four words: “full faith and credit”. Sounds like the DOJ realized that if they pushed the issue, especially with support for gay marriage on the rise, that was going to wind up being what struck it down.

Full faith and credit is completely untouched by this decision. That deals with Section 2, which allows states to not recognize marriages from other states. This is Section 3, which deals with definition of marriage for federal purposes.

Definitely welcome news. It makes me very optimistic that same sex marriage will soon be legal nationwide.

It makes me very optimistic that same sex marriage will soon be legal nationwide.

I’ll take that bet. Unless a significant challenge to section 2 comes along, and it either isn’t defended by the DOJ, and/or Justice Kennedy has a gay relative, I predict status quo remains for the foreseeable future.

I think that this is an opportunity to deflect the culture wars from hating on women (something that remains popular) to hating the gays (which is getting less popular)...let the wing-nuts rant and rave about the scourge of the gays and spend less time on shutting down Planned Parenthood.

No, actually, I second alicefairy, its an opportunity to start some shit, not just respond to the shit the Teabaggers stir up. Good…Democrats need to start agitating and standing strong and as both the leader of our nation, and the party, Obama needs to bring it.

I’ll take that bet. Unless a significant challenge to section 2 comes along, and it either isn’t defended by the DOJ, and/or Justice Kennedy has a gay relative, I predict status quo remains for the foreseeable future.

You and me both.

is unconstitutional, and therefore they’re not going to enforce it any more.

No, they’re still going to enforce it, they just won’t defend it.

I don’t know what “enforce” means in that context, honestly.

My theory in general is that Obama only tries to make people who don’t vote for him happy, so the best way to get him behind your policy priority is to either stay home or vote against him.

I think the obvious thing is to find gay SC relatives and urge them to speak to their uncles and aunts, fathers/mothers, etc…

My theory in general is that Obama only tries to make people who don’t vote for him happy, so the best way to get him behind your policy priority is to either stay home or vote against him.

I think you’re on to something. A friend of mine remarked that we began 2010 losing the public option and ended it with obscene tax cuts for the rich.

And before anyone chimes in with bubububububu DADT, please see my earlier comment. It certainly does begin to look like they’re taking maximum time implementing it. I’ll be shocked if it’s in place before the 2012 election. Happy to be wrong of course, but the fact is that Obama seems to love policy initiatives that don’t kick in until well after the period in which they could have paid off politically has passed.

I don’t know what “enforce” means in that context, honestly.

I think the clearest application will be taxes.  My understanding is that the executive branch will continue to follow the law until it is repealed or declared unconstitutional. Therefore, a gay couple married in Massachusetts will still not be eligible to file jointly for federal tax purposes. But DOJ will write briefs telling the 1st and 2nd Circuits (which cover the North East) that they should strike down the law as unconstitutional.

But DOJ will write briefs telling the 1st and 2nd Circuits (which cover the North East) that they should strike down the law as unconstitutional.

MAJeff, the God of Biscuits and I can’t possibly be the only people in this thread who have actually read the article and Holder’s statement, right? The article Amanda links to and Holder’s explicit statements say nothing even remotely close to what you’ve just stated. In fact, the DOJ will continue to defend section 2 of DOMA, which allows states to expressly refuse to recognize same sex marriages performed in other states. The only thing they’re actually pretending to believe is unconstitutional is the second part that expressly defines marriage as for men + women only.

We can’t so desperate that we’re just going to take them at their word, are we? Surely we aren’t suckers of that magnitude. Let’s at least wait until Obama actually manages to honor his opposition to DOMA in a substantial way before we get hopey about it. In the meantime, we can bet they will most certainly not be writing briefs that the law is unconstitutional, only that section 3 is, and that only for cases where opposition to the law is based on challenging section three. Except most challenges to the law are based on section two. A Gay couple in Mass. will still enjoy the bonus fun of watching their fierce advocate oppose their equality. You know, for constitutional reasons.

On DADT: the repeal bill passed only 2 months ago. The Commandant of the Marine Corps - the only service chief opposed to repeal - is now the cheerleader for implementing it.  The Pentagon’s study and training period will be done by summer, and full repeal will be in place *well* before the 2012 election season gets underway.

On DOMA: legally today’s announcement changes nothing, and yet the politics shift dramatically.  DOMA is firmly back in the national debate.  With Hawaii passing civil unions and Maryland passing full marriage equality, we have a nice little burst of momentum.  We’re even going to have a DOMA repeal bill introduced in the Senate.  Prepare for a couple weeks of wall-to-wall fag bashing on Fox News and the House floor, and (hopefully, if we get them out there) stories of loving, stable gay and lesbian families in every other forum.

Ross Lincoln @18: “Except most challenges to the law are based on section two. A Gay couple in Mass. will still enjoy the bonus fun of watching their fierce advocate oppose their equality.”

Um… A gay couple filing suit in Mass most likely got married in Mass.  They’d be challenging Section 3.  In fact, GLAD is pursuing just such a case right now.  See here.  So far, the good guys are winning.  Today’s announcement will help, as Gill goes to the 1st Circuit.

...I’m guessing that as we type our comments, a group of Mormon elders is meeting in secret with the hierarchy of the Catholic Church and the leaders of the American Taliban regarding plans to Prop H8 the whole country.  Constitutional Amendment?...

Um, that referance was a deliberate call back to:

Therefore, a gay couple married in Massachusetts will still not be eligible to file jointly for federal tax purposes.

My point was that same Couple in mass. filing their taxes together gets to watch Obama’s DOJ defend real discrimination while lauding their ‘brave’ opposition to semantic discrimination.

reference. Oy.

I’m guessing that as we type our comments, a group of Mormon elders is meeting in secret with the hierarchy of the Catholic Church and the leaders of the American Taliban regarding plans to Prop H8 the whole country.

Secret? I didn’t realize the 2012 GOP convention wasn’t open to the public.

BBH:

http://www.nytimes.com/2011/02/23/us/politics/23repeal.html

I think your optimism is misplaced.

@22: A couple points (though I’m still not clear what your point is):

1) A married gay couple in Mass can, in fact, file a joint tax return.  It will not be IRS compliant but, because we all know that Section 3 is unconstitutional, it will arguably be a legal return.  Unless the couple draws attention to the fact that they are both of the same sex, the IRS is unlikely even to notice.  I myself am half of a gay married couple in Connecticut, and we filed a joint federal return last year.  Also, I practice tax law.

2) I still think you might be confused about Section 2 versus Section 3 of DOMA.  Section 2 will affect the Mass couple only if they move to a non-equality state (and only if that state has a law against recognizing out-of-state gay marriages).  Section 3 is what affects the couple’s interactions with the federal government.  So if the Mass couple (like these nice folks) are suing the feds over their right to file a joint tax return, then today’s announcement does actually make a difference: the Obama administration will not defend Section 3 of DOMA, and they are more likely to win.

Ross Lincoln - I have read both the article and Holder’s statement. My understanding that DOJ will be filing briefs urging a finding of unconstitutionality is based on Holder’s statement that:

Consequently, the Department will not defend the constitutionality of Section 3….We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.

Since the President has decided that the continued enforcement of DOMA is unconstitutional, but has pledged to remain a party in the relevant law suits, it follows that DOJ will submit briefs arguing that the law should be rejected. I may be parsing too closely, but that’s what I take “represent the interests of the US” to mean.

Moreover, I think the most important quote was this:

[T]he President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.

If the Courts affirmed this conclusion (big if) and sexual orientation became a suspect classification that would be a huge boon for the LGBT community.

Also, this really isn’t just a semantic argument - if same-sex marriages are recognized by the federal government that won’t just give people the warm fuzzies - it means they’d get all the federal tax breaks and health/survivor/estate/immigration/etc. benefits that are granted to heterosexual married couples.

Obama accidentally did something progressive again?  Wow, if he keeps this up I might have to stop feeling so disillusioned about the state of the Democratic party.  It might not be all rainbows and puppies, but certainly more than I expected from him.

@25: The NYT article you link to seems to support my thesis: that it’s only been 2 months, that the Pentagon will be ready by August, and that repeal will be fully effective 2 months after that.

In other news, the Log Cabin Republicans are grubbing for some free publicity, and still trying to claim credit for a victory that wasn’t theirs.

Seriously, Ross, sometimes the glass is half full.

Lord, look, forget Massachussets, it’s irrelevant to what I was actually saying. Seriously.

Here, let me state more carefully: If the Obama team continues to defend section 2, then it doesn’t matter if they oppose section 3. Defending section 2 means defending the section that allows states to refuse to recognize same sex marriages performed in other states.

That was my point. The nice couple in Masschussetts will enjoy the spectacle of watching Obama defend the right of states they DO NOT LIVE IN to discriminate against them. This metaphorical couple are not involved in a lawsuit, they just happen to be people who would be subject to persecution should they visit Oklahoma, OK? Clearer?

And please do re-read Holder’s comments. The only thing he says is section 3, over and over again. That’s suspiciously specific. Especially since they specifically only said they will not defend cases to do with section three.

““The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” Holder said. “Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”

Such cases. not ‘all cases’ but such cases, as in such cases to do with section 3. They are deliberately, and opaquely leaving themselves a ton of wiggle room to continue to argue against the rights of gay people to live equally nationwide. I can’t believe after 2 years of this shit you haven’t learned to pick up on the way Obama’s team lies (as opposed to the way Bush’s lied).

Ross, you need to realize two things.

1) DOJ is addressing a legal issue in two pending cases that address Section 3 - not commenting on the consitutionality of a provision not currently being briefed is neither unusual nor indicative of DOJ’s feelings about that section.

2) If the Courts accept Obama’s interpretation that sexual orientation should be considered a suspect classification, Section 2 will be inevitably overturned because Loving v. Virginia will be controlling precedent.  It’s important that the administration’s analysis involves an assumption of suspect classification (as opposed to a failure to provide a rational basis for discrimination) because Loving was decided under a suspect classification framework. The equation is [discrimination regarding right to marry] + [suspect class] = unconstitutional.  Once sexual orientation is validated as a suspect class you’re basically all the way to marriage equality, and the law will be applicable to the states.  If you’re still under rational basis review the application, even of a win, would be much murkier.

@30: Right. Holder has announced that the administration will no longer defend against challenges to Section 3 of DOMA.  As far as I know, no-one in the administration has ever publically questioned the constitutionality of Section 2, and the DOJ will continue to defend against challenges to Section 2.

If all of these things are true, then how is the administration lying?

And again, today’s announcement really, really matters to folks in Massachusetts (and Connecticut, and Iowa, and California, and New York, and lots of other places where validly married gay couples live).  Because actual, real, tangible federal benefits are on the line here.  Yes, married gay couples might be treated differently if they travel to Oklahoma, just as they might be treated differently if they travel to Iran.  Yes, that sucks, and we should work to change that in the long run.  But as long as they continue to live, work, and raise their families at home, they now have a better chance of enjoying the material support of the federal government.

rivki, I hope you’re right. I do. But I simply don’t accept the premise that Obama is thinking 10 moves ahead anymore. I’ve kind of grown tired of getting burned. So, admittedly, my cynicism is at an all time high. I simply do not believe Obama is sincere, at all.

BABH, I do hope you’re right but they seem awfully keen to overemphasize the less discriminatory part of the law, to the point of making it clear they’re only going to stand down for challenges to that section.

I’d add that the difference between OK and Iran is that one of them is part of the same country as Massachussetts.

I agree that Section 2 is a very significant part of DOMA, and that it would be better if DOJ got behind its repeal, too. I don’t understand the argument (which Ross Lincoln seems to be making?) that Section 2 is somehow more significant than Section 3. Section 3 is what keeps married gay people from getting Social Security survivorship benefits, what keeps them from getting healthcare benefits for their spouses if they are employed by the federal government, and what keeps them from filing joint tax returns. Its invalidation would have real and immediate benefits for gay people who have the option of getting legally married under the laws of their respective states.

As to the full faith and credit issue, although Section 2 makes it less likely that gay marriage could spread from the states in which it’s legal to those in which it isn’t, that was never likely in the first place. Constitutional interpretation of the full faith and credit clause has always emphasized that sister states have a right to reject one another’s public acts (such as marriage licenses/certificates) if those acts are contrary to the public policy of the receiving state. That’s why anti-miscegenation laws were eventually wiped out by a federal constitutional challenge based on due process and equal protection, and not simply by interracial couples marrying in the North, moving to the South, and forcing the Southern states to recognize their marriages. That’s why if you marry your first cousin in a state that allows that and then later move to a state that does not, your marriage may not be treated by the second state as valid. This has always been a choice of law issue handled on a state-by-state basis, and although the simple logic of full faith and credit seems compelling and like the most obvious path to nationwide marriage equality, the structure of the doctrine was never going to permit that.

Obviously, Congress did gay people no favors by reaffirming that sister states can reject same-sex marriages contracted in other states. But neither, I think, is Section 2 the dam behind which the force of full faith and credit is held; its invalidation would leave couples moving from Massachusetts to Oklahoma in the same position, viz. shit out of luck. What’s needed is a SCOTUS decision in favor of marriage equality as a matter of federal constitutional law. That’s coming sooner or later, and it’s possible that DOJ’s endorsement of heightened scrutiny of sexual orientation discrimination will hasten that day.

@35 is exactly right: Section 2 is pretty clearly constitutional - even redundant - under existing precedent.

And because Oklahoma and Massachusetts are in the same country, once Section 3 is gone all American gay and lesbian families will have the option of moving to a state like Mass, where they can enjoy full equality.

“Holder wrote to House Speaker John Boehner, R-Ohio, that Obama has concluded…”

Is this the way it is suppose to work?  I thought the DOJ did the legal analysis?

SS451 beat me to it but here let me explain in simple clear terms how marriage works in the US.  Reciprocity works across state lines on almost everything from driver licenses to marriage.  Each state agrees to view each other state’s rules as the same.  Since the federal government doesn’t issue marriage licenses they have no stake in the game.  All DOMA actually does is prevent same-sex couples from receiving federal benefits.  Section 2 as Ross has repeatedly spoken about is simply a reaffirmation of the state’s right to issue marriage licenses otherwise DOMA would be forced into doing just that by Section 3’s clauses. 

Once Section 3 is struck down gay Americans can move to Kansas after marrying in Massachusetts and be FEDERALLY recognized.  Which effectively paves the way to undo every anti-gay marriage law in the land under Loving v. Virginia.  Which is why Obama sees no reason to undercut DOMA as a whole since it would undercut federal power or increase it depending on the stance taken on it’s unconstitutionality.  I think this is the realization that both DOMA is criminal in it’s bigotry and that the tea party is never going to vote for him, his goal is to secure the youth vote for 2012 and try and cut the republican legs out from under them with hopefully a Palin/Pence/Romney/Huckabee ticket to ease him to victory and sweep in a democratic congress…again.

I do feel there comes a point where cynicism towards Obama fades into believing the man wants the LGBT movement to fail.  There’s not a whit of evidence of that.  On the contrary, the evidence shows that he’s a man who supports LGBT personally, and then hedges about it publicly for political reasons while trying to lay the groundwork for the rights to be gained in ways that put them outside of Republican rollbacks.  He explicitly said his intention with DADT was to get Congress to outlaw it, on the theory that it makes it untouchable (i.e. the opposite of Roe v. Wade).  And he did win that round.  So, my feeling is that his tactics can be examined for efficacy, but I’m wary of suggesting he’s not trying to win this one.

Amanda, you probably should edit the post, IMO, because enforce isn’t the same as defend. They’re going to keep enforcing it. IANAL, etc.

LGM explanation, with bonus smack at Jeff Goldstein. Good, clear stuff in the comments.
http://www.lawyersgunsmoneyblog.com/2011/02/on-the-alleged-tyranny-of-obamas-refusal-to-defend-the-constitutionality-of-doma

“With Hawaii passing civil unions and Maryland passing full marriage equality,”

It’s only the Maryland State Senate that passed it.  Still has to go through the house.

If Obama had gotten off his ass and done this and the final push on DADT, Democrats might not have lost the House.

As it was, I think losing the House was the moment the President realized he could only push so many of the base underneath the bus.

And the final push on DADT hasn’t even started yet. All we get is a law that gives a framework in which DADT can eventually be repealed. The military still gets to drag its feet for however long it likes to ‘make sure’ that ‘readiness’ won’t be affected, that they’re ready to make the transition, blah blah blah. Once they turn in their report to the President, and the President certifies it as good to go, then we still have to wait for 60 goddamned days before they can even begin implementing repeal.

Right now, anonymous comments from inside DoD are saying they ‘might’ be ready to present their report confirming that they’re ready to begin implementation by August of 2011. There’s more hedges in that than an Egnlish country estate. I really want to be wrong about this because it’s the right thing to do and good politics, but I will be surprised if DADT repeal actually happens before preventing it from being implemented can be used as an issue in the Republican primaries.

That said, I agree with you - had Obama and the Democrats put the effort into stuff like this before the election they wouldn’t have lost the House.

Read something somewhere, a leak, Obama trying to get the military brass to step up the pace on the repeal of DADT “before the election.”

How’d that work out for you, Mr President?

Better late than never, even if the DADT repeal is slow as molasses, it’s also now inevitable. And this on DOMA does appear to be the death knell, no matter how long that bell keeps on pealing.

I’ve also read that big time gay donors (and volunteers) made the point over and over to the Obama administration that they would be sitting out the mid-terms.

The Obama administration assumed they had “nowhere else to go”—but they did, they simply stayed home, with their cash in pocket.

Obama seems only to react to the hardline, from whichever side.

Why do all of these posts end up with comments which are invariably always writing up more negative words and attributing them to various people?

I don’t get it.  Unless the administration does *mumblemumble* or *something actually not legal*, they’re against us?

It’s not like the President can unilaterally change the IRS’s definition of what is an isn’t a dependent.  That takes years.  Or can change passed law, like DADT.  Or appropriate funds.  Or make court precedent.

Sheesh.

By what metric is Obama going slow? Last I checked, the previous Dem in the White House actually went backwards on this issue. Yet progressives like Paul Krugman go all googly-eyed at the thought of Slick Willy maneuvering in the Oval-O. Obama? He’s about as attractive as Nixonto this crew.

On racial segregation, various polls showed a majority in favor of abolishment as early as the 1930s. But FDR couldn’t even bother to get rid of lynching, never mind Jim Crow, despite having the public support of even southern senators and white southern voters.

The only thing standing in the way of desegregation for 30 years or so was the freakin’ filibuster, yet Obama’s predecessors couldn’t be bothered. NOW the freakin’ dems want to get rid of the damn thing.  A little late, assholes.

By the time we get to 1963, you have a whopping 80% of whites in favor of eliminating govt-sponsored segregation (Racial Attitudes in America: Trends and Interpretations). The time wasn’t right…it was about as overdue as Charlie Sheen’s cancellation.

But all these turds except for arguably Charlie are in good standing in progressive-land. All you gotta do is blabber on inanely about eliminationist rhetoric like Bubba and Carter do and all is good. Actually get historic stuff done by working with Joe Lieberman and Robert Gates? Not so impressive. I see how it works.