Lots to celebrate today. DON'T FORGET HAWAII!

HOORAY FOR LOVE!

Baby steps.

Wake me when your entire country moves on, k?

That said, about time.

Is it safe to say tipping point this time? Such great news, and gotta love a politician who remembers to dance with them that brought him...

(*don't forget: hydrate to compensate for the salt on the edge of the glass...)

Actually, Dan, you kind of were wrong. DOJ will still defend DOMA in districts where existing precedent requires that they do so; they've just decided that for districts where there is no precedent, they have the latitude to oppose it. So they remain very much bound by the law and have just found a narrow exception due to some cases emerging in no-precedent districts.

It's very positive news to be sure, but it's not like Obama banged his fist on his desk and cried, "To hell with the law!"

@5 is correct.

You were right (of course you were!), but if that's worth saying, it's worth also saying that the lawyers at ACLU and GLAD who knew where to file the November cases to box in the President enough to get him to do this...were righter.

@4, stare decisis counts for fuck-all in federal courts, as you're probably well aware. @5 is also correct.

Of course, until the Supremes rule, every member of our armed forces and their family overseas is still stuck in No Marriage No Tax Exemption for you purgatory.

@5 is correct as @6 and @8 point out.

From my hometown newspaper's forum in Yuba City, CA

"Wow, the Obama administration just pulled a card out of Arnie's bag of tricks. Surprise, surprise. Actually the surprise is that it took Osama Obama this long to drop this."

Hahaha

Amen and pass the equal justice

I know in Dan's blogs that he's cited precedent for the DOJ not defending a law. Anybody know what those are? I'm trying to counter my Born Again sister, who posted about Obama's decision on Facebook disingenuously claiming this is not about gay marriage but about the sanctity of the law, and I want to rub some examples in her face, especially if there are any from Republican presidents.

@14 just tell her Bush did it and to STFU.

Yes, being right certainly moved this along.

@11, clearly you've never tried to make that argument to a federal judge. I have. I stand by my original statement.

No, you weren't.

The issue was never, "Is the DOJ always obliged to defend federal law?" Everyone (well, everyone who knows anything about the topic) agrees that the answer to that question is "No."

The issue was, "What is the STANDARD for refusing to defend federal law, and does DOMA meet it?" The Obama Administration argued that IF the test of constitutionality is the lenient "rational basis" test, THEN there is a reasonable argument for the law's constitutionality, and the DOJ has an obligation to defend it. That was the view they expressed in the DOMA briefs, and in defense of the DOMA briefs, people complained about, and that is the view they continue to express even today and after today. They have not conceded that argument--nor should they, because they're right. (I doubt that DOMA meets even "rational basis" scrutiny, but it's hard to say, just because of how little the Supreme Court has sometimes said is required to uphold a law on that test; I don't think there are *no reasonable arguments* for the conclusion that it does meet such scrutiny.)

What has happened, however, is that two DOMA challenges have been filed in circuits where the question of the appropriate level of scrutiny has not been previously decided. This opens up different legal questions from the one the DOJ considered in the previous DOMA cases. In particular, it opens up the question of whether (a) sexual orientation is a suspect classification and (b) whether DOMA can survive heightened scrutiny. The DOJ letter argues, I think convincingly, that THESE two questions are much more clear-cut: the answer to the first is "yes" and the answer to the second is "no." Hence, having no reasonable grounds to defend the statute, they have abandoned its defense in those circuits. (It's unclear what they will do in the First Circuit, where precedent, at least on the DOJ's reading, requires a rational basis test.)

It is worth reading what Attorney General Holder and the DOJ have actually said, not just press reports on the subject.

Sweet jesus, you guys have to take a quick look at JMG right now, the quotes from Huckabee ("gay marriage is causing a $300 billion 'derelict dad' issue") and Santorum are priceless, and if you keep scrolling down, you'll see the cute kid at Auburn University giving the sassy finger to a group of fundies who came to yell at them...(and why do fundie women always wear long jeans skirts? with white socks?)

@20, 21: Courts will, of course, invoke stare decisis when it suits them. When they are departing from precedent, they don't usually cite the doctrine. No two cases are ever exactly the same, and if you can't help a court distinguish your case from an unfavorable precedent, then you wasted your law school tuition dollars.

Oh, and @5 is right.

@14,
I copied this from a comment on a related post at wakingupnow.com.

Obama is merely following a well established precedent of previous executive branches picking and choosing whether or not to actively defend a law in court. Here are some examples from the last four administrations:

a) George W. Bush (2005): in ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”

b) Bill Clinton (1999): in Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”

c) George HW Bush (1990): in Metro Broadcasting v. Federal Communications Commission – “The Bush administration chose not to defend the law that allowed that minority applicants for broadcast licenses were given preference if all other relevant factors were roughly equal.”

d) Ronald Reagan (1983): in INS v./ Chadha - “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and instead of defending the law, the INS joined Chadha in arguing that § 244(c)(2) is unconstitutional.”

Yep,DOMA is still law, the lack of defending DOMA is pretty narrow, etc etc.

But symbolically? Huge, absolutely huge. I'm very pleased.

If this is what happens when you go on vacation, Dan...!

Dan may be on holidays, but flying monkeys never rest...

Freep the poll? Savage the poll?:

http://www.boston.com/news/polls/022311_…

Yay!

Yet in Utah, the lame-ass governor is given the "Champion of the Family" award for being discriminatory.
SALT LAKE CITY — Gov. Gary Herbert received an award Wednesday for his efforts in supporting families, specifically for defending marriage as between a man and a woman.
http://www.ksl.com/?nid=148&sid=14490243

This would be the same uneducated asshole who is about to get control of the public schools in Utah, thanks to an equally lame-ass legislature.

Canuck, it looks like it's already been freeped (90%!). Though if I say so myself, the wording of the poll is very poor. I'm sure that more than one hapless conservative voted incorrectly on it.

@28 -- duly savaged, though the poll is in no trouble whatsoever, 90-10 in favor of letting DOMA go :D

Beyond being right or wrong, the question that needs to be answered is What is the Obama administration thinking? What is their goal & their strategy to accomplish it? Right now, there doesn't seem to be a clear answer. With Bush, everyone knew what he wanted, and pretty much how he'd do it. But what the fuck is going on w/ Obama? If he wants LGBT equality, why doesn't he say so & work on it. Do what Bush did, make his enemies defend everything, fight them on every front. His approval ratings are fine, why is he acting like such a limp-dick fuckhead?

Uh....I'm pretty sure Obama is evolving his position as concrete evidence (like the report that killed DADT) and cultural opinion solidifies, in order to prevent the entire issue from bring wrapped up with him and his presidency. It's called the long game.

In other words, you're still wrong.

Rach3l and BEG...meant to mention that, I didn't find it by my lonesome, it was up on another blog...but every little bit, right? And doh, I agree that not only is the wording poor, but the two questions changed places on my page as it refreshed...almost picked the wrong one...

I love how the reaction from the left has ranged from "OBAMA WUZ A LIAR" to "Obama is just throwing us a bone, the really important issue is...."

@34

So have they killed Baby Joseph yet?

Is it too soon to pop the cork celebrating this victory of Socialist Death Panels?

Dan, I went to Savage Love to email you to specifically say that you picked a bad week to go on vacation! (Hope it's lovely, though.)

So, yes, celebrate, celebrate!!

But I also want to hear you sound on off on Wisconsin, Walker/Wanker's prank tape, and the batshit crazy stuff coming out of the GOP on abortion--have you seen the latest one, out of Georgia, that would call for criminal investigations of all miscarriages to ensure that they were not abortions?!?!? (No, I'm not making this shit up!)

I can't get through my week without you, Dan. But, again, I hope you're having a good vacation.

The bleaters are already claiming that No! President! Ever! has done this and that Congress should start impeachment proceedings against Obama over it.

But on volokh.com, they listed links to citations that the government has done exactly this - refusing to defend a law they felt was unconstitutional - at least 13 times in the past.

http://www.law.com/jsp/article.jsp?id=12…

http://volokh.com/2011/02/23/do-presiden…

...and the walls, keep tumblin', tumblin'...!

@26 - Thanks for the precedents!

As I recall, Obama resonated with the electorate because he is thoughtful and deliberate and eloquent, in direct contrast to Bush the Lesser. Now many seem upset that they can't pull the strings necessary for him to dance to their particular tune at their particular speed. I agree with Schmacky @33 - it is a very big picture we are seeing unfold, so celebrate each stroke.

Actually I checked with DOJ. They they tell me they won't defend DOMA (at least section 3, I suppose) anywhere.