Pelosi leads Democrats' challenge to DOMA

Carolyn Lochhead, Chronicle Washington Bureau
Friday, November 4, 2011

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/11/03/MNP31LQ681.DTL

Washington -- House Minority Leader Nancy Pelosi led 130 fellow Democrats in filing a friend-of-the-court brief Thursday challenging the 1996 Defense of Marriage Act, arguing that Republicans defending the law, which denies all federal benefits to married same-sex couples, do not represent the full House.

The consolidated Massachusetts cases before the First Circuit Court of Appeals in Boston are the first to reach a the federal appellate level, just one step down from the U.S. Supreme Court, which is widely expected ultimately to resolve the constitutionality of the law, known as DOMA.

How would this work, exactly? Does the decision of the court ultimately determine the constitutionality of the law, or do they have to move up to the Supreme Court to get a final verdict regardless of the outcome? Can Republicans in the House challenge the suit's occurrence? I know quite a bit about the US, but I don't know how your courts work.

The Circuit court jurisdiction over the federal cases brought forth in:
    District of Maine
    District of Massachusetts
    District of New Hampshire
    District of Puerto Rico
    District of Rhode Island

the decision can be appealed to Supreme Court which can decide or chose not to hear a case (affirming the decision of the lower court by proxy). if Supreme Court decides generally there is no further appeals process.

The Dems' filed a "friend of the court brief". Such a brief allows, just about, anyone to add their two cents worth.

The Obama Admin should be defending DOMA, even if they are sending in the Third string practice squad appellate team. The GOP, whatever ones view on DOMA, is doing the constitutional thing. A law was passed by Congress and signed by the POTUS. It sets or adds to dangerous precedent to not defend DOMA.

Now if you can get Moderate GOP'ers and Democrats to bring a repeal DOMA act to the floor of the House, that would be great.

It will be interesting to see if the SCUS bundles CA Prop8 and these cases together.

The summer of 2012 could get very, very interesting.

I would have liked to see the Dems push for repeal of DOMA during Obama's first year, when the Dems had more power in Congress; it's a shame they haven't worked harder on that angle.

On the plus side, a verdict against DOMA in the Supreme Court would set a precedent that would strike a heavy blow against any similar such legislation in the future, whereas a repealed law could always be reintroduced and re-passed by a future Congress as long as DOMAs Constitutionality has not been definitively determined by the Courts.

As for Obama's Executive Branch, I don't think it is their place to defend OR oppose DOMA in the courts; they should stand neutral on all existing law. The President and his Executive Branch underlings are charged to *enforce* the law, not to make the law and not to judge the law. The President, in accordance with the philosophy of "Checks and Balances", should not get to choose what laws he likes or does not like; he should enforce them all with equal vigor. Congress holds the power of Legislation and Repeal and the Courts hold the power of Determination and Nullification. Congress should be repealing this thing and the Citizens should be pushing the Courts to determine this thing Unconstitutional and therefore Null and Void.

But then, we all know the government we have now is nothing like what the Founders envisioned in their various writings. The fact that the Occupy movement even exists is proof of that.

Quote from: Michelle. on November 04, 2011, 11:07:16 PM
The Dems' filed a "friend of the court brief". Such a brief allows, just about, anyone to add their two cents worth.

The Obama Admin should be defending DOMA, even if they are sending in the Third string practice squad appellate team. The GOP, whatever ones view on DOMA, is doing the constitutional thing. A law was passed by Congress and signed by the POTUS. It sets or adds to dangerous precedent to not defend DOMA.

The President's job is to ENFORCE the law, which he has done. LGBT couples have been continually denied the federal rights enjoyed by straight married people in accordance with DOMA. Enforcing a law, however, does not require that you publicly defend its merits, and I personally am glad to see that they've ceased being apologists for it.

He hasn't done anything wrong and hasn't set any dangerous precedents. The notion that it's "unconstitutional" for the Executive branch not to defend the merits of a law (while still enforcing it) is nothing more than a Fox News talking point. This may come as a surprise but even the President is allowed freedom of speech while still obeying and enforcing laws passed by Congress.

Ah, no.

The Executive Branch picking and choosing which cases to defend is dangerous. Very dangerous.

I thought that the US Constitution forbids limiting access to federal contracts without just cause (equal protection before the law)? As in, they can't deny a group of people access to a federal contract "just because". The Defense of Marriage Act is therefore (to the best of my understanding) a violation of this precedent and therefore unconstitutional. That would make the GOP wrong.

Am I mistaken? Is that not a precedent? Or is that not how it works? What's up?

DOMA makes both the GOP and Dems wrong. Keep in mind that Pres. Clinton signed DOMA in '96.

You are correct as to the Cons. issue re: "equal protection". That is the avenue of appeal being sought in the CA Prop8 case. A case which has been taken up by both of the counsels involved in Bush v. Gore.

This is a dangerous road given that a future President could use this as a precedent to not defend other matters of current law.

Let's say a Pres. Ron Paul wants to do some of his crazier stuff. Or, President Kucinich goes anti- free market. Or, a President Perrt dosent defend a suit involving the IRS. Or a President Bachman decides to stand mute on a Row v Wade challenge. Or, a President Frank steps aside in regards to enforcement of mortgage contracts.

Quote from: Michelle. on November 05, 2011, 04:12:20 PM
DOMA makes both the GOP and Dems wrong. Keep in mind that Pres. Clinton signed DOMA in '96.

You are correct as to the Cons. issue re: "equal protection". That is the avenue of appeal being sought in the CA Prop8 case. A case which has been taken up by both of the counsels involved in Bush v. Gore.

This is a dangerous road given that a future President could use this as a precedent to not defend other matters of current law.

Let's say a Pres. Ron Paul wants to do some of his crazier stuff. Or, President Kucinich goes anti- free market. Or, a President Perrt dosent defend a suit involving the IRS. Or a President Bachman decides to stand mute on a Row v Wade challenge. Or, a President Frank steps aside in regards to enforcement of mortgage contracts.

Right there in your last paragraph you've interchanged "defend" and "enforce" where they are not interchangeable. This is your mistake (and why you are wrong).

The law is still being enforced; Gay couples still don't have the same federal rights as straight couples. The only difference is the President has said "I no longer agree that this law is how things should be, although I am still required to enforce it and will continue to do so."

Defend =/= Enforce 

No, as the Executive Branch they should at a minimum fund an outside defense.

In the above examples I was suggesting if a suit came along.

So fundamentally what I'm getting here is not disagreement about whether or not DOMA is constitutional (it violates equal protection), but rather concern that the chief executive is not enforcing it and is actively working to undermine it? Because, as I understand it, the chief executive shouldn't enforce law which patently violates the constitution.

To put things in a Danish perspective (which is easier for me), suppose that the previous Prime Minister and his coalition were able to successfully enact legislation which patently violates the Danish constitution. Does the fact that the law is on the books from a previous government mean that the law should be enforced until a future government repeals it? I don't think it should.

In your president's case, we're looking at legislation which while successfully passed by a previous legislature and executive, is still a violation of your constitution's equal protection clause. Why should he back it or enforce it? It's not as if I'm asking why he should back and enforce legislation which is constitutional (that's his job), but rather why should he enforce unconstitutional legislation (which is not his job)?

The bottom line in my eyes is this: if it is the job of your chief executive to enforce blatantly unconstitutional legislation just as quickly as constitutional legislation, your constitution's precedents are ultimately formalities. The courts alone cannot be relied upon to strengthen and enforce your constitution, the executive plays a role in that it is his office that holds enforcement powers and no other.

Under the US system the Judiciary has the sole power to determine if a law is constitutional or not. Well barring an amendment to the Constitution.

In effect, the Obama Admin is to de facto consider all current US law to meet Constitutional standards.


Let's put this in a different perspective and I believe this happened on occasion. The George W Bush Admin. when it came up would pay for an outside group to defend abortion related issues. By defend I mean a "woman's right to chose".

But hasn't it been an established precedent that the President is the final decider of what regulations are enforced? As is often quoted of Andrew Jackson, "John Marshall has made his decision, now let him enforce it." That's why he's the head of the Executive branch, the branch responsible for law enforcement. Part of his prerogative is the ability to decide what laws to enforce and what laws not to enforce.

I understand what you're arguing, but isn't that how it works?

I would be careful with the Andrew Jackson quotes. I believe that quote references what is now called the "trail of tears". Jackson treated American Indians so badly that to this day many will demand 2 $10 bills in place of a twenty.

Regulation in the US arises from bills passed by Congress. So different Administrations can and do change them at will. But that stuff is more along the lines of EPA rules.

EPA= Environmental Protection Agency. Another example is possible here. Let's say that Rick Perry become President. Five months into his first term a group of Texas utilities file a case in court. They challenge the cons. of the EPA itself. Perry might agree with them, yet still has to take action to defend the case.

A European example. Could a PM on his/her own unilaterally withdraw his/her nation from the EU?

I only referenced that particular quote as an example of an American executive going directly against the decision of the courts. I never meant to say anything I shouldn't have.

No, a PM couldn't withdraw their country from the EU without the consent of the Parliament (and public referendum to boot, most likely). I think I begin to see what you mean. The chief executive may have his/her own views, but by virtue of the responsibilities of his/her office there are actions that must be taken (even if the executive themselves does not wish to take such actions).

In other words, a Conservative who dislikes the EPA couldn't simply decide to let the agency's regulations slide altogether just to appease a bunch of oil tycoons in Texas. Likewise, a PM can't simply give Eurosceptics what they want regardless of the will of the Parliament or the population in general. I don't know if these two situations are directly comparable, but I think I understand the message.

Yeah. I had a feeling that you knew about Andrew Jackson. In today's America that would spark a crisis. With the President most likely being impeached.

The president's job as outlined in the constitution is to make sure the law is followed.

It is being followed.

Ergo, the president is doing his job.

Basically, bills passed by Congress and enacted into law must be regarded by the Office of the President as Constitutional until such time as the Courts determine otherwise. The man (or woman) who holds the office may personally believe the law is not Constitutional, but is still bound to act officially as though it is Constitutional in the absence of a Court ruling, even if "common wisdom" says it is clearly not Constitutional. Note that the President does have latitude to determine how the law will be enforced. So, the President should not be officially defending or condemning any particular even if he, as a citizen, has strong opinions on the matter. He is free to state his personal opinion on the matter under the First Amendment, but should not use official Presidential assets or symbols when doing so.

Yes, there is a history of Presidents choosing to enforce some laws and not others. Technically, that can be considered a violation of the duties and intent of the Office, but in practice there is not much anyone can do about it unless the President's behavior rises to the level of an Impeachable Offense in the eyes of Congress, in which case they may elect to vote on whether to Impeach him and Remove him from Office (two separate actions).

If I pick and choose which of my employer's requirements I choose to meet, I get fired. Apart from Impeachment and Removal from Office, normally reserved for the most heinous actions, there is no analogous punishment for the President.

I believe DOMA is Unconstitutional and needs to be thrown out by both Congress and the Courts, but I also believe the President should not state any official position on the matter, and keep his personal opinions in the realm of private citizen expression only.

(In the event we elect a non-male President of any other gender identity, adjust all pronouns accordingly. )