Sunday, February 27, 2011

Obama abandons DOMA: Why he had no choice; Video Update: Gingrich, Beck blatantly lie about new policy

In an unusually clairvoyant piece published in the New York Times in January, Charlie Savage explained exactly why, despite right-wing assertions to the contrary, it has become legally untenable for the Obama administration to continue to defend the federal Defense of Marriage Act, signed by President Clinton in 1996.
Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.
     That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation.
     “Now they are being asked what they think the law should be, and not merely how to apply the law as it exists,” said Michael Dorf, a Cornell University law professor. “There is much less room to hide for that decision.”
Compare Savage's stunningly accurate prediction to Attorney General Eric Holden's just-issued statement on the administration's new policy on defending DOMA:
In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.
     Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.
     After careful consideration, including a review of my recommendation, the 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. 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. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.
UPDATE: Gingrich, Beck lie about new policy

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