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Obama Borrows A California Play On Gay Marriage

We got news today that the Obama administration will no longer legally defend the Defense of Marriage Act (DOMA). The act defines marriage, for federal purposes, as a union between a man and woman. It also says states that don’t recognize same-sex marriage cannot be forced to recognize same-sex marriages performed in other states where it’s legal.

This is interesting for a couple of reasons. First, it parallels the situation in California. State voters banned same-sex marriage by passing Proposition 8, but the Governor and the Attorney General refused to defend the law. Now DOMA, which was passed by Congress, is being challenged in court and the President is refusing to defend it.

This is also an interesting development in Barack Obama’s strange and waffling position on same-sex marriage. Obama has said for many years that he’s opposed to same-sex marriage. Yet, during the 2008 election he also opposed California Proposition 8. I’m not sure how he managed to have it both ways, but the waffle worked and nobody called him on it.

Late last year, Obama said his views on same-sex marriage are “evolving.” With this latest development, and his pronouncement that DOMA is unconstitutional, that evolution seems to have become a change of mind.

There are some things that make the federal case different from the California situation. First, the Obama administration had been defending DOMA, while Arnold Schwarzenegger and Jerry Brown have never defended Prop. 8. Also, in the federal case the Obama administration has invited Speaker of the House John Boehner to pick up where the justice department left off. I expect Congress will continue to defend DOMA.

California voters, by contrast, had no one in government to turn to when it came to defending Proposition 8. That’s why initiative proponents stepped in to defend the law, although their standing in the case has recently come into question.

You can read Attorney General Eric Holder’s letter to Boehner, which spells out the administration’s thinking and approach to the issue. The Obama administration says Section 3 of the the Defense of Marriage Act violates the equal-protection clause of the constitution.

Last year I wrote about California leaders’ refusal to defend Proposition 8. I think their decision was a disenfranchisement of California voters, given the possibility that proponents will not be allowed to defend the law. Deciding whether a law is constitutional is up to the courts, not politicians, and California state government has an obligation to defend its laws, whether or not the Governor particularly likes them.

A.G. Eric Holder seems to disagree with me, at least when it comes to the federal government. He writes, “The (Justice) Department has declined to defend a statute in cases in which it is manifest that the President has concluded that the statute is unconstitutional.”

Stay tuned.

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Avatar for user 'LawyerMyra'

LawyerMyra | February 24, 2011 at 11:40 a.m. ― 5 years, 11 months ago

As a family law attorney I am keenly aware of how all of the varying laws affect dissolution of marriage and domestic partnership. Whether you are in favor of or against same sex marriage there needs to be some sort of uniformity among state and federal laws so that separating couples who need and/or pay support can be adequately protected as well as a myraid of other issues too numerous to mention.

Myra Chack Fleischer
Certified Legal Specialist - Family

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Avatar for user 'Greg Duch'

Greg Duch | February 24, 2011 at 2:57 p.m. ― 5 years, 10 months ago


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Avatar for user 'Tom Fudge'

Tom Fudge, KPBS Staff | February 25, 2011 at 10:46 a.m. ― 5 years, 10 months ago

I do not think the President should be allowed to decide which laws are constitutional and which ones the government should seek to uphold. If the Democratic process comes to a conclusion, as it did with DOMA, the justice department is stuck with it unless or until the courts knock it down. It was surprising to me to see Obama take this position. He made a point of saying he had a "duty" to defend "Don't Ask Don't Tell" even though he disagreed with the policy. As to Myra's point, I'm sure it's valid. Yet it seems that marriage has always been governed by patchwork of state laws. If the states disagree on gay marriage, what should be the position of the federal government? In a situation like this, uniformity is very tough to achieve.

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Avatar for user 'Greg Duch'

Greg Duch | February 25, 2011 at 3:18 p.m. ― 5 years, 10 months ago

I agree with you completely. The Chief Executive "EXECUTES" LAWS which the CONGRESS LEGISLATES. It is up to the Supreme Court to be the final arbiter for conflicts affecting Federal law and for conflicts between laws of the several states which may be in conflict.
Dear Pres. B.O. : You are a constitutional scholar by education. Why are you acting in a manner sure to be struck down by the nine folks in the black robes???? You are inviting attacks from enemies and friends. WHY? Are you looking to be defeated next year? Such self-destructive behavior may well accomplish that end. You confuse me, man.

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