Newt Gingrich deserves all of the brickbats and damnation he is getting for his uninformed and thoroughly wrong opinion about the President’s DOMA decision. I’ll only add a word about why his pugnacious subterfuge will have some appeal — and why it shouldn’t.
Gingrich is trying to morph Obama into San Francisco’s Gavin Newsom. Newsom, in fact, is the lawless politician Gingrich wishes Obama were, who not only refused to enforce California’s anti-gay marriage prohibition, he ostentatiously allowed people in his city to openly violate it. This was a politically savvy and profitable move for him (he is now California’s Lieutenant Governor) but it was an unapologetic violation of his legal duties, something the California Supreme Court made abundantly clear.
Obama is not Newsom. Newsom took what he believed to be a moral position, akin to civil disobedience. That is fine for individual citizens, but it is a bit more precarious for someone whose job is to administer the law.
Obama has either learned from Newsom’s escapade, or is relying on a different political instinct. Eric Holder’s letter to Speaker John Boehner could not have been clearer that (a) the administration will continue to enforce DOMA as long as it is the law; and (b) that while the administration will not defend it in court, they are not trying to sandbag anyone, and want to give other parties with an interest, up to and including Congress, itself, the ability to defend it as best they can.
Enforcing the law is a clear legal obligation of any administration, local, state or federal. But defending laws in court is imbued with political judgment. While it is now being brought out as a bogeyman to wither the left, a Republican President who does not want to defend Roe v. Wade has leeway to make that call. There are others who can step up to the plate.
The executive’s leeway here comes for an obvious but often depreciated reason. The courts are a separate branch of the government. While the executive branch can normally be relied on to defend laws, the executive is not the only possible party in a court proceeding. Certainly, courts may give a bit of extra deference to the executive’s position, but the court’s duty is to the law itself, not to any particular party in the case.
Whether a statute is defended or opposed by Richard Nixon or the ACLU or the American Nazi Party or Congress, the courts rule on the validity of a law independent of the nature of the contending parties. The courts are always subject to suspicion about political motives in decisions, but contrary to easy rhetoric, no single judge ever has the final say on any law. Both the state and federal court systems have elaborate mechanisms for appeal, where multiple judges holding a myriad of political and personal views take part in the process of making these consequential decisions. And the higher a case goes in the process, the more judges there are on the panel. That is no guarantee against political motivation in the judiciary, but it’s an intentional layer of insulation from the naked politics of the executive and legislative branches.
Obama made his political and moral decision not to defend DOMA because that kind of choice falls within the judgment any president has. But in the area where he has no such latitude – enforcing the law as it currently stands – he has made it as clear as can be that he will do what the law requires.
Gingrich and others may wish Obama were someone else, and may try to mischaracterize his actions to that end. But Gingrich is today what he has always been, a cheap charlatan with a used car salesman’s patter and sincerity.
37 Comments for “No Sale, Newt”
posted by North Dallas Thirty on
Actually, given the example of how the Obama administration refuses to enforce the Voting Rights Act when it would result in key Obama Party constituencies like the Black Panthers being punished, or the more recent example of how Barack Obama deliberately acts in contempt of law and court rulings, Gingrich is correct.
Obama is a lawless politician and will not enforce the law; he is simply lying, and expecting his subservient toadies like Andrew Sullivan and David Link to spin for him.
posted by socraticsilence on
I’m sorry, what how exactly is a Political Party with approxiamately 50 members, and literally no record of any achievement (the New Black Panther Party is in no way related to the Black Panther Party of the late 60s through the early 80s).
posted by Ben Dooddle on
Ah….”…key constituencies like the Black Panthers…” C’mon man, a couple a’ losers in panther gear hanging out by the voting both is not a “key constituency”…is it?
I totally understand your disagreements with his policy positions and will stand with you on your right to air those disagreements…but its the hyperbolic “lawless politician” crap that makes your point of view distasteful. Obama is just a politician with which you disagree…no?
posted by North Dallas Thirty on
Actually, the Barack Obama administration made it clear today that, to Obama, the Black Panthers are “my people”.
posted by Houndentenor on
You’d think someone who’d been married three times and cheated on at least the first two wives would know better than to mouth off on the marriage issue. Newt has no respect for traditional marriage and he’s demonstrated that lack of respect over and over.
Many administrations have failed to appeal a court ruling. This is hardly unusual except that it’s a touchstone issue for the religious right. The law is unconstitutional.
posted by Tom on
Section 3 is the clearest-cut case. It is indefensible under strict scrutiny, and could meet the rational basis test if and only if the courts were willing to go outside the legislative history to find a half-way plausible governmental purpose. In either case, it is likely to be found unconstitutional under full faith and credit.
The constitutionality of Section 2 is less clear in my opinion, anyway. Given the legislative history, it almost certainly will not survive strict scrutiny. It might, however, survive a rational basis test if sufficient support for the “laboratory” rationale can be found in the legislative record, but that’s shaky in light of the “public policy” exception to full faith and credit.
No matter what happens — my guess is that Speaker Boehner is going to be pressured into hiring special counsel to defend DOMA — cases involving DOMA are going to be around for years as the constitutional questions work their way through the circuits and, eventually, to SCOTUS.
As part of the process, the legislative history of DOMA is likely to be tested, and found wanting, somewhat similar to the way in which the motivations behind Proposition 8 were tested and found wanting. Speaker Boehner can’t savor that likelihood.
posted by Houndentenor on
Those are all good points. My understanding is that states can ignore marriages performed in other states if those individuals could not be married in their state (for example, some states have lower age restrictions for marriage than others). That is likely to stand. I was confused about this since states have to accept each others court decisions (divorce or child custody, for example), but I’m not the only one. A good discussion about what the laws actually are and what the relevant court decisions are would be helpful, but then that is true for most issues. I wonder what it’s like to live in a country where the media discusses issues like this in context rather than just having on two idiots to scream at each other.
posted by Tom on
My understanding is that states can ignore marriages performed in other states if those individuals could not be married in their state (for example, some states have lower age restrictions for marriage than others).
Application of “full faith and credit” between the states when it comes to marriage is complex, but my understanding is this: As a general rule, a state must recognize a marriage performed in another state as valid unless the state has a strong and clearly expressed public policy rationale for not recognizing the validity of the marriage.
The devil is in the details, of course, and the question of when the “public policy exception” applies is a grey line rather than a bright line.
posted by Jorge on
Hyperbole aside, I have to say I don’t trust Obama’s motives, either. I trust Holder’s credibility even less.
I think the Obama administration has an obligation to defend the law to the best of its ability, if for no other reason than to maintain the credibility of the federal government as a fair enforcer of the laws duly passed by the legislative branch. If the Justice Department believes the law is unconstitutional–that is, it’ll lose the case–or there’s some other kind of major objection, then the administration should try to settle the case in some way.
posted by Tom on
I think the Obama administration has an obligation to defend the law to the best of its ability, if for no other reason than to maintain the credibility of the federal government as a fair enforcer of the laws duly passed by the legislative branch.
The problem with defending DOMA is that the legislative history is replete with statements of religious motivation, moral repulsion and downright bias, all of which make it next to impossible to defend under strict scrutiny and difficult to defend under the rational basis test. Under the rational basis test, the courts can go outside the legislative history to find a rational basis, so the damaging legislative history isn’t dispositive, but the record makes it difficult.
I’m not sure I agree with the administration that strict scrutiny is the proper test for cases involving gays and lesbians. I’m certain that strict scrutiny isn’t necessary to win our cases. We’ve been doing well under the rational basis test.
But if you believe, as the administration apparently does after review, that strict scrutiny is the proper test, defense has no reasonable prospects of success, in terms of constitutionality.
The Executive does not have an obligation to expend government resources tilting at windmills, and the Department of Justice has refused to defend congressional acts in other cases, as both the letter and other comments have pointed out.
In this case as in those, the question of defense then moves from the Executive to the Legislative branch. The next decision Speaker Boehner’s. I expect him to hire special counsel, and I suspect that he will be under tremendous pressure from social conservatives to hire one of the right-wing advocacy law firms.
I hope he resists and hires competent counsel from the private firms with real expertise instead. We all know how Perry turned out. As much as I support Judge Walker’s decision, and think it correct, I was embarrassed at the utter lack of quality of the Prop 8 legal defense. I think important cases deserve far better representation.
posted by Jorge on
The problem with defending DOMA is that the legislative history is replete with statements of religious motivation, moral repulsion and downright bias, all of which make it next to impossible to defend under strict scrutiny and difficult to defend under the rational basis test. Under the rational basis test, the courts can go outside the legislative history to find a rational basis, so the damaging legislative history isn’t dispositive, but the record makes it difficult.
The legislative record, maybe, but what about the judicial record? There’s state laws that were upheld in state courts. Anyway, I don’t think the legislative record of congresspeople who supported the bill is relevant unless there is no other stated intent in the bill, and I would find that very hard to believe. At the time there was concern that the judiciary would impose gay marriage on the nation by fiat, which, taken down to its core, would be an imposition of social change and a certain set of values. The legislature is permitted to codify a set of values it believes is best for society, and the fact that such values are rooted in religion or moral repulsion is no bar. I’ll give you bias.
I’m certain that strict scrutiny isn’t necessary to win our cases. We’ve been doing well under the rational basis test.
Not if you live in New York.
But if you believe, as the administration apparently does after review, that strict scrutiny is the proper test
There was a major decision after New York that I found persuasive. I think it was Iowa? I’m undecided.
posted by Tom on
Tom: I’m certain that strict scrutiny isn’t necessary to win our cases. We’ve been doing well under the rational basis test.
Jorge: Not if you live in New York.
I think that there is a general recognition that the New York decision was motivated more by politics than law, but whatever the reality of that issue, the New York decision in Hernandez v. Robles is a near-perfect example of the ridiculous lengths to which courts have had to stretch to find a “rational basis” for marriage discrimination:
The rationale, echoed in the Washington state and Indiana decisions, is sometimes called the “feckless breeder” rationale.
The rationale, in essence, argues that (1) straights are so reckless and irresponsible in spawning and rearing children that the state has a rational basis to providing financial and legal inducements for them to act against their nature and be responsible parents, while (2) inducements which are not necessary for gays and lesbians, who are responsible parents who do not need the inducement.
That is what the “rational basis” test has come down to in the state decisions. It is absurd on its face.
posted by Jorge on
I think that there is a general recognition that the New York decision was motivated more by politics than law
That’s the first I’ve heard of it! Explain yourself.
but whatever the reality of that issue, the New York decision in Hernandez v. Robles is a near-perfect example of the ridiculous lengths to which courts have had to stretch to find a “rational basis” for marriage discrimination:
I do not agree with you at all. I think the distinction between gay sex and straight sex is a near-perfect example of a sound “rational basis” for discriminating between gay and straight couples. In fact, I’d go as far as to say that if it weren’t for certain Supreme Court decisions that elevated the status of adultery and premarital sex to the status of a constitutional right, the breakup of the family that we’ve seen toward the end of the last century wouldn’t have been nearly as bad. How can you look at the modern breakup of the family, a breakup fueled in large part by the irresponsibility of liberal ideology made pervasive, and call the “reckless breeder” rational absurd?
While we must spend all our efforts to show the worth of gay parents and families, that does not mean it comes at the cost of a respect for the social order that protects all families. We the people have a responsibility to protect the family and consider all kinds of ideas that might help. For you to mock a deferential recognition of this duty as mere politics is an insult to our responsibility toward good citizenship.
And I stand on this.
posted by Tom on
Tom: I think that there is a general recognition that the New York decision was motivated more by politics than law …
Jorge: That’s the first I’ve heard of it! Explain yourself.
The commentaries written in the wake of the decision discussed the fact that the New York Court of Appeals seemed to be looking for an excuse to kick the can over to the legislature rather than decide the issue. The long stretch of logic which the court used to find a “rational basis” was the basis for the observation in most cases.
Jorge: I think the distinction between gay sex and straight sex is a near-perfect example of a sound “rational basis” for discriminating between gay and straight couples.
The New York Court of Appeals was not distinguishing between “gay sex and straight sex”. The court did not reason that marriage and procreation are inherently tied together. Instead, the court based its opinion on a distinction between responsible and irresponsible entry into parenting, arguing that parents who enter into parenthood responsibly do not need the protections of marriage while parents who enter into parenthood through “accident or impulse” do.
Look closely at the words of the court. The distinction the court makes is between (1) “casual or temporary” relationships in which straights “become parents as a result of accident or impulse” — in a word, irresponsible procreation — and (2) the forethought with which gays and lesbians become parents. I don’t know if that is right, entirely — there are straights who actually want to be parents and plan for it.
But it is the next step that is very odd, indeed.
The court reasons that the government has rational basis for believing that it must offer “an inducement” for straights to take responsibility for their children (the first paragraph below), while believing that there is no similar need to offer the protections and stability of marriage to gays and lesbians, who, because they are responsible about becoming parents, don’t need the bribe (the second paragraph below).
In a nutshell, the argument goes: “Gays and lesbians are responsible about parenthood, so they don’t need marriage. They will be responsible parents with or without marriage. Straights, on the other hand, are irresponsible about procreation, can’t be counted on to be responsible parents, and need to be bribed into becoming responsible parents by offering the incentives of marriage.
Now that kind of reasoning is just crazy, in my opinion, but I think that most people will recognize that it is a real leap from common sense. Even if you agree that government needs to bribe straights into sticking with their children and raising them, it is not only the children of the irresponsible, the feckless, and the sexual outlaws — the straights, as characterized by the courts — who can benefit from the protection of marriage. All children do.
And even if there is a special need to offer “incentives” to straights, marriage is not an zero-sum game. The number of marriage is not a fixed and limited quanyity. The court’s logic fails, ultimately, because the need to offer “incentives” to straights to get them to take care of their children doesn’t provide a reason why the children of gays and lesbians shouldn’t also enjoy the benefits that accrue from having married parents.
Jorge: How can you look at the modern breakup of the family, a breakup fueled in large part by the irresponsibility of liberal ideology made pervasive, and call the “reckless breeder” rational absurd?
I can call it absurd because there is no logical or factual basis for the argument. Straights have enjoyed a monopoly on marriage for generations, and there is not a single shred of evidence that denying marriage equality to gays and lesbians has done anything — anything at all — to stem the sexual recklessness of straights or induce them into responsible marriages. That’s been the flaw of the so-called “protect marriage” movement all along — there is no connection between inducing straights to return to responsible sexual behavior and to marriage as a norm, on the one hand, and denying marriage to gays and lesbians, on the other.
If the problem is that we have lost sight of the cultural norm that existed when I was a young man — “If you want to have sex, get married, and if you have children, stay married.” — the “protect marriage” movement seems to have gone out of its way to ensure that the norms of marriage are buried forever. Denying marriage equality to gays and lesbians says, very clearly, that sex is not tied to marriage, and children not only can, but should, be raised outside of marriage. Don’t think that young people don’t get the message. If marriage isn’t important enough to allow — insist — that gays and lesbians should live by the norm of marriage, then we are really saying that marriage is not important.
Jorge: While we must spend all our efforts to show the worth of gay parents and families, that does not mean it comes at the cost of a respect for the social order that protects all families. We the people have a responsibility to protect the family and consider all kinds of ideas that might help. For you to mock a deferential recognition of this duty as mere politics is an insult to our responsibility toward good citizenship.
I believe that the reasoning of the New York Court of Appeals is ass backwards, illogical, and absurd. I’ve explained why I think so. You might disagree with my thinking, but don’t get too high on your high horse, lest you fall off and hurt yourself. It is not me who is failing to respect marriage as important enough to make return it to its former status as the cultural norm. I am the one, after all, who is arguing for marriage.
posted by North Dallas Thirty on
Tom’s attempt to spin this is, to say the least, entertaining.
The rationale, in essence, argues that (1) straights are so reckless and irresponsible in spawning and rearing children that the state has a rational basis to providing financial and legal inducements for them to act against their nature and be responsible parents, while (2) inducements which are not necessary for gays and lesbians, who are responsible parents who do not need the inducement.
Actually, it would be because only heterosexual intercourse “spawns and rears” children. This is a basic, biological fact, proven over milennia, supported by science, and in fact core to several theories, including evolution.
In short, the basis is perfectly rational. It simply is the refusal of gays and lesbians to acknowledge reality that creates the disconnect.
posted by Jorge on
Instead, the court based its opinion on a distinction between responsible and irresponsible entry into parenting, arguing that parents who enter into parenthood responsibly do not need the protections of marriage while parents who enter into parenthood through “accident or impulse” do.
That’s not it at all. It’s that there is a reasonable case to be made that society should be protected by the incidence of accidental unwanted pregnancy and parenting. And that a reasonable case can be made that straight marriage but not gay marriage is a reasonable solution to the problem. The fact that some commentators are intellectually incapable grasping such a simple and logical argument does not obligate me to find their reasoning compelling.
“Gays and lesbians are responsible about parenthood, so they don’t need marriage.
No. It’s that society does not need gay marriage.
The ruling does not stand very well when you take the proposition that marriage is a civil right and extend that right to gays.
You might disagree with my thinking, but don’t get too high on your high horse, lest you fall off and hurt yourself
I don’t just disagree with your thinking. I think your scorn for the decision is out of bounds and that you need to show more respect for the people who put their best time and attention into deciding and arguing this case.
posted by Tom on
ND30: In short, the basis is perfectly rational. It simply is the refusal of gays and lesbians to acknowledge reality that creates the disconnect.
All you have to do, ND, is explain how denying marriage equality to gays and lesbians (a) reduces “unstable relationships between people of the opposite sex” and (b) “promot[es] stability in opposite sex relationships”.
If it is “perfectly rational”, as you assert, it should be a slam dunk to articulate and support how it works. So do so.
posted by Tom on
Jorge: It’s that there is a reasonable case to be made that society should be protected by the incidence of accidental unwanted pregnancy and parenting. And that a reasonable case can be made that straight marriage but not gay marriage is a reasonable solution to the problem.
And so? The question before the court wasn’t whether marriage equality would solve the problem, but whether denial of marriage equality had a rational basis. If the rational basis is to problem, then the court needed to address how denying marriage equality solved the problem. It did not.
Jorge: The ruling does not stand very well when you take the proposition that marriage is a civil right and extend that right to gays.
That is exactly right. It doesn’t stand at all, in fact. The question before the court was whether the marriage laws of New York, which incent straight to marry but prohibit gays and lesbians from marrying, met constitutional standards. The court provided a rational basis for incenting straights to marry, but did not provide any plausible facts or rationale to support the proposition that denying marriage equality to gays and lesbians (a) reduces “unstable relationships between people of the opposite sex” and (b) “promot[es] stability in opposite sex relationships”.
Jorge: I think your scorn for the decision is out of bounds and that you need to show more respect for the people who put their best time and attention into deciding and arguing this case.
I don’t scorn the time and attention. I scorn the reasoning. The reasoning, in a nutshell, is “Your sister is a slut, so you are grounded.”
I noted in my first comment that “That is what the “rational basis” test has come down to in the state decisions. It is absurd on its face.”
I am not suggesting, but that comment or others, that the “protect marriage” advocates didn’t do the best job that could be done with the facts and the law in this case. This was not Perry, where the Prop8 advocates failed to put on a case.
I think, in fact, that the “protect marriage” advocates in New York, as well as in the sister cases in Washington state and Indiana, put forth the best case available. But that doesn’t mean that the best case makes any sense.
posted by Tom on
CORRECTION: Words “solve the” went missing in the comment immediately above. Here’s the correct wording:
Jorge: It’s that there is a reasonable case to be made that society should be protected by the incidence of accidental unwanted pregnancy and parenting. And that a reasonable case can be made that straight marriage but not gay marriage is a reasonable solution to the problem.
And so? The question before the court wasn’t whether marriage equality would solve the problem, but whether denial of marriage equality had a rational basis. If the rational basis is to solve the problem, then the court needed to address how denying marriage equality solved the problem. It did not.
posted by North Dallas Thirty on
All you have to do, ND, is explain how denying marriage equality to gays and lesbians (a) reduces “unstable relationships between people of the opposite sex” and (b) “promot[es] stability in opposite sex relationships”.
That’s easy, Tom.
In fact, you can practice it yourself. Explain how denying marriage “equality” to incest, pedophilia, and plural practitioners, just to name a few, (a) reduces “unstable relationships between people of the opposite sex” and (b) “promot[es] stability in opposite sex relationships”.
Short answer: it doesn’t. But that doesn’t matter because the courts have taken a rational and logical tack in upholding laws that limit marriage — that the reason the government does so is because it wants to encourage a specific and beneficial outcome.
Marriage is no different than a tax credit for buying a hybrid car. The government gives you one because it knows people want/need to drive and, if that’s going to happen anyway, it is better for the outcome they want (less energy used and pollution generated) to encourage you to drive a hybrid. The government takes a revenue hit to encourage what it considers better behavior.
In the same fashion, marriage is an accomodation to the fact that a) heterosexuals will have sex, b) heterosexual sex produces children, c) it is beneficial for society both to have and to raise children, and d) the two-biological-parent model has been shown over millennia to be far and away the best choice for carrying out this process. The government has made a conscious choice to take another revenue hit to encourage what it considers better behavior.
Thus, it’s easy to explain why incestuous, pedophilic, plural, and gay-sex marriages don’t receive said benefits; they are irrelevant to the aforementioned considerations and they don’t provide similar value to society. Or, to put it differently, all of these are akin to demanding the hybrid tax credit for driving a Suburban; you want the benefits without the limitations, and are claiming that government’s refusal to give said credit is denying your “right” to it based on the fact that other people who accept the limitations receive it.
Furthermore, Tom, your arguments in this space are transparent examples of rationalization for your own behavior. You chose to marry and have sex with a woman and produce children. You then decided to skip out on all of these things because you were no longer sexually interested in the person to whom you had made the commitment in order to receive the benefits. Now you’re arguing that you should receive the benefits even though you don’t want to accept the limitations. Your attitude is no different than a polygamist demanding his “right” to marry his second wife and complaining about the government “denying” it to him simply because he already has one.
posted by Tom on
ND30: You chose to marry and have sex with a woman and produce children. You then decided to skip out on all of these things because you were no longer sexually interested in the person to whom you had made the commitment in order to receive the benefits.
The assertion “you decided to skip out on all of these things” is both untrue and edging very close to actionable. Watch your step, Dan. It is one thing to toss around hyperbole like “Nazi”, “bigot”, “thug” and such, but quite another to make a knowing, specific, false, defamatory statement about an individual.
posted by North Dallas Thirty on
The assertion “you decided to skip out on all of these things” is both untrue and edging very close to actionable. Watch your step, Dan. It is one thing to toss around hyperbole like “Nazi”, “bigot”, “thug” and such, but quite another to make a knowing, specific, false, defamatory statement about an individual.
Really, Tom? Really? You’ve seen people here saying the world would be better off if I killed myself and that I have an eight-year-old chained up in my basement to molest, and you’re still going on about “defamatory statements”?
Good gravy, man up. I would like to think that someone who’s claiming on their own blog that Scott Walker is as bad as Hosni Mubarak and that Sarah Palin was responsible for the Tucson shootings would be smarter than to whine about “defamatory statements” elsewhere.
posted by BobN on
Lawyers also have an obligation — legal and ethical — to present honest defenses. They can’t do so in the federal circuits where there is precedent for heightened scrutiny or where there is no scrutiny. They will continue to argue in circuits where rational-basis scrutiny is existing precedent. (At which time, ND will chime in with “Obama = betrayer” theme.)
What does “settle the case in some other way” mean?
posted by Jorge on
I said “some way.” When you think about it it’s probably difficult to do, so this could be a reasonable settlement. I’m just skeptical that it wasn’t motivated by politics.
posted by Doug on
Lawyers also have an obligation — legal and ethical — to present honest defenses.
That’s a crock. There are tons of defenses that are not legal and ethical. The ‘Twinky Defense’ come to mind and a quick google search will provide many more. Lawyers will do anything to get a client off. Keep in mind that a ham sandwich can be indicted.
posted by BobN on
Federal prosecutors are, in theory, held to a higher standard than mall attorneys.
posted by North Dallas Thirty on
The problem with defending
DOMAlaws prohibiting the extension of benefits to plural, incestuous, or child marriage is that the legislative history is replete with statements of religious motivation, moral repulsion and downright bias, all of which make it next to impossible to defend under strict scrutiny and difficult to defend under the rational basis test.Fixed it for you, Tom.
Perhaps you could exercise a little intellect next time and explain to us how all of these laws have managed to survive.
posted by Tom on
Perhaps you could exercise a little intellect next time and explain to us how all of these laws have managed to survive.
Certainly, ND.
Bans on plural, incestuous, or child marriage would survive constitutional challenge because: (1) the standards for strict scrutiny would be next to impossible to meet in any of the cases you posit; and (2) a rational basis for the ban would be relatively easy to articulate in each of the cases you posit.
By the way, it is a welcome development to see you actually post a substantive substantive response instead of just tossing around “Nazi”, “bigot”, “thug”, “anti-religious” and other substitutes for reasoned discussion.
posted by North Dallas Thirty on
How so, Tom?
Please explain why “strict scrutiny”, or “rational basis” for that matter, could not be met in the case of bans on plural, incestuous, or child marriage.
Keep in mind the following:
– Any sign of religious or moral objection will be ignored and condemned as bigotry on your part.
– Only limitations provided for in the Fourteenth Amendment are constitutional
– You must demonstrate how allowing said relationships to marry would damage your own relationship, or you have no right to criticize or object to them
– The government does not have any right whatsoever to critique, judge, or otherwise limit “love” and the right to marry whatever you “love”
– No sexual behaviors which have a biological basis, such as the attraction to children, may be limited or be used as grounds for preventing someone from marrying whatever partner they choose.
– The welfare of children is irrelevant, since marriage has nothing to do with children or family relationships and must be given to all regardless thereof
These are all arguments that gays and lesbians have made for demanding gay-sex marriage. Practice what you preach and be intellectually honest and consistent.
posted by Doug on
So I guess Bush should be tried as a war criminal since he didn’t enforce the laws against torture and in-fact explicitly authorized torture.
posted by David Link on
For the record, the administration is not recommending strict scrutiny, but rather “heightened” scrutiny. This falls somewhere between rational basis and strict scrutiny, and is the standard the federal courts currently use for gender based discrimination. California’s Supreme Court uses strict scrutiny, but that’s under California’s constitution. This is certainly a manipulable standard, but so are the other two, as the New York case illustrates.
posted by Carl on
I think Obama is mostly doing this to get a reaction out of the Republicans. If the Republicans in Congress push through a way to defend DOMA, or perhaps something even more strict, I won’t be surprised if Obama just shrugs.
posted by Tom on
Congress does not need to “push through a way to defend DOMA”. The House can hire special counsel, following past practice, to defend the law if it chooses to do so.
I think that it is tilting at windmills. Section 3 is of dubious constitutionality, at best, and is unlikely to survive judicial scrutiny no matter whether it is defended or not. Section 2 has a better shot at surviving judicial scrutiny, but it is overkill in light of the constitutional amendments, which establish a clear “public policy” removing same-sex marriage outside of full faith and credit in those states.
If the House votes on the question of retaining special counsel, it may shed some light on our recent discussion of whether or not the libertarians and the Tea Party will, in fact, be a moderating force on social conservatives in the Republican Party.
And yes, President Obama will probably shrug if Speaker Boehner elects to defend DOMA. Why shouldn’t he? Past practice dictates that when the Executive elects not to defend the constitutionality of a law, it notifies Congress so that Congress can do so it it chooses. It would hardly be an earth-shaking development if Speaker Boehner elected to do so in this case.
posted by Doug on
Hiring a special counsel to defend a law of dubious constitutionality doesn’t strike me as fiscally responsible. Where are the jobs Mr. Speaker?
posted by Tom on
He’ll go forward. Here’s an excerpt from an interview he gave to Christian television Sunday:
Speaker John Boehner: “We’ve been researching all the options that are available to us. We’ll be talking to the members in the next few days about that and I expect we’ll have a decision by the end of the week.”
David Brody; “Rick Santorum says that the Speaker of the House should appoint a counsel representing the House of Representatives to take up the case and argue DOMA in federal court. Is that a good idea?”
Speaker John Boehner: “It’s an option being considered.”
David Brody: ”And on these options the bottom line is that something is going to happen from the House and something will get done?”
Speaker John Boehner: “I’d be very surprised if the House didn’t decide that they were going to defend law.”
posted by BobN on
“We’ve been researching all the options that are available to us.”
In other words, they’re searching desperately to find a venue where the trial won’t be televised.
posted by Carl on
That’s true but I wonder if this will go further than just a vote on counsel, in legislation or in statements. Already you are seeing more politicians who were praised by some for saying little about the decision more openly condemning the idea of gay marriage.
Obama may feel that if the Republicans make an issue out of being against gay marriage, it will be seen as a distraction and annoy voters. And if it doesn’t, and voters respond to anti-gay talking points, then he can just say he didn’t really do anything.