DOMA Chameleon

Our guest columnist is Eric Holder.

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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because — as here — the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act [DoJ, via everybody]

out the window.

a pig just flew by.

The legal beagles here will recognize that the feds accepting the “heightened standard” argument for gay/lesbian discrimination is a really big deal.

@Dodgerblue: The rest of us just want pretty shiny things.

@Capt Howdy: Spiderpig.

Newt’s DOMA challenged:

Newt Gingrich’s speech at the University of Pennsylvania on Tuesday quickly took a turn for the dramatic when the first student to question him brought up his admitted extramarital affair and accused him of being “hypocritical” for espousing moral values.

“You adamantly oppose gay rights … but you’ve also been married three times and admitted to having an affair with your current wife while you were still married to your second,” Isabel Friedman, president of Penn Democrats, said to Gingrich. “As a successful politician who’s considering running for president, who would set the bar for moral conduct and be the voice of the American people, how do you reconcile this hypocritical interpretation of the religious values that you so vigorously defend?”

Newt’s not running, of course. Just selling books, like he always does.

@nojo: Because it’s OK to fuck women, everywhere, anywhere, any time, but not guys. That’s why.

Unicorn’s 2012 campaign sure as hell ain’t gonna fund itself, and he needs the monies from teh gheyz and friends of gheyz…

@Dodgerblue: That is the interesting part of it.

Oh, and the challengers to Prop. 8 file a motion to lift the stay of Judge Walker’s order, given the DOMA announcement.

BREAKING: Jimmy McMillan leaves “The Rent is Too Damn High” Party for the GOP.

The hits keep right on coming.

Today in WTF. Now comes news that a set in The King’s Speech was used to shoot GAY PORN. And not just any old porn but British porn. I know. Who could ever imagine such a thing was even possible? Well, seems it was.

I would link to pics but not sure how everyone feels about witnessing Limeys with erections.

@Capt Howdy: I played a lot of pool in college, but never in my underpants.


me either
but then I dont wear underpants

(im kidding im kidding)

@Right Reverend Benedick: Or Filipino underwear models . All this legal stuff would be much easier to understand if Fillipino underwear models were explaining it.

In the pron version Geoffrey Rush sits on his face.

@Tommmcatt is with Karin Marie on This One: Don’t you make an appearance in Snookered!? Or was it Your Cue’s Too Big?

@Right Reverend Benedick: Nah, I was just the fluffer on those. Check me out in Cream of Sum Yung Gui or Chasing the Dragon.

@Tommmcatt is with Karin Marie on This One: Ha ha.

BTW str8 men should use extreme caution clicking on Capt’s link. As we know, the gay is catching, especially when men are holding their sticks.

@Right Reverend Benedick: Actually, I do own a pornographic film called Cream of Sum Yung Gui and while I am not in it, I did sleep with one of the performers several times.

I miss youth.

@Tommmcatt is with Karin Marie on This One: The English version is called Naughty Cream of Mushroom Soup plus Spanking.

@Right Reverend Benedick: How do Limeys with erections differ from other humans with erections? Tweed undergarments? What?

@Right Reverend Benedick: Read your reply to Effete Hipster. After a few moments, he said, “Not tonight, dear. Too cold.”

@lynnlightfoot: Limey foreplay: eating sardines on toast in bed together.

Out of curiosity, I decided to type “disaster cake” into Google’s fanciful searching-box interface, and this picture was, whattaya know, the first one to arrive.

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