Monday, February 28, 2011

Incapable of defense

Last week I had written that Obama and the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act. Here is a list of all the cases challenging Section 3 along with an explanation of what Obama's announcement might mean.

Part of all that is a discussion of levels of scrutiny and the consequences. In rational basis scrutiny the government only need supply a rational reason for the discrimination. In heightened scrutiny the standards are higher. What Obama's announcement said is in gay rights cases heightened scrutiny must be used. Obama didn't say he doesn't want to defend the law. He said that under this level of scrutiny he is incapable of defending it because there were simply no arguments that would pass the standards.

Since that announcement…

John Boehner will decide by the end of the week whether the House will take over defense of DOMA from the DoJ. Many in his party are calling for it, even if, as he says, it benefits Obama. It is unclear whether the House can act on its own or needs authorization and funding with Senate approval and Obama's signature.

Obama's DoJ will no longer defend the constitutionality of Don't Ask, Don't Tell. Since the policy isn't actually gone yet, there is a lawsuit proceeding through the courts to force its end. The DoJ is still taking part in it. However, they have asked the judge to change the question being considered. Is DADT unconstitutional, as a lower court has said? The DoJ agrees. Instead, the trial should be about whether the DADT repeal process (the one that requires certification and a 60 day wait) is constitutional. The DoJ will defend that. But it isn't clear the court will allow that kind of switch.

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