Another Court of Appeals strikes down DOMA

When the DOMA case gets to the Supreme Court, will the Solicitor General be there on behalf of the United States of America, to defend bigotry? We get to decide November 6. Now tell me again why it doesn’t matter who wins?

The Second Circuit joints the First, and finds that discrimination by sexual orientation calls for heightened scrutiny. Good.

But of course this is going up to the Supreme Court. When it gets there, will the Solicitor General, on behalf of the United States of America, defend it? The voters get to make that decision November 6.

If on occasion I get just a mite testy with the people who insist that it doesn’t matter who wins, or that the choice that day is between evils, this is one of many reasons why. Yes, if I were a nicer person I’d be more polite about it, but not everyone has Harold’s saintly disposition.

Update Commenter Ken Rhodes writes:

I’m puzzled by the mention of the Solicitor General, defense of the DOMA, and the upcoming election, all together in that short paragraph. How are they related? Who defended the DOMA, on behalf of the government, in the two referenced Court of Appeals cases? Isn’t it the job of an attorney to represent his client, irrespective of his personal distaste?

More than a year ago, President Obama and Attorney General Holder decided that the law could not conscionably be defended (legal argument here).

Fox News and various Republican politicians accused Obama of tyranny and called for his impeachment.

But in fact his actions were not only clearly lawful but had plenty of precedent.

With DoJ off the case, the Republicans in Congress decided to spend $1.5 million of the moneey we keep being reminded we “borrow from China” to hire private counsel to defend the sacred right of bigots to enact their prejudices into law. They ought to be made to pay a political price for that decision.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

20 thoughts on “Another Court of Appeals strikes down DOMA”

  1. not to mention filling vacancies on the Court before it reconsiders Roe v Wade (or for that matter the one person/one vote apportionment cases of the early 1960s).

  2. I’m puzzled by the mention of the Solicitor General, defense of the DOMA, and the upcoming election, all together in that short paragraph. How are they related? Who defended the DOMA, on behalf of the government, in the two referenced Court of Appeals cases? Isn’t it the job of an attorney to represent his client, irrespective of his personal distaste?

    1. The Obama administration announced some time ago, last year I think, that it considered the DOMA unconstitutional and would not defend it. Since then, it has been defended in court by agents of the House Republican caucus. If Romney were to be elected president, presumably the policy of the current administration not to defend the DOMA would be reversed, and the Solicitor General would argue on behalf of the DOMA before the supreme.

  3. I am willing to go along with repealing DOMA, or at least ignoring it Obama-style, on the federal level, so that the government may subsidize more forms of affection that are facially incapable of resulting in organic procreation, if only so I have some “I am not a homophobe, but” credibility for arguing about the more bossy and atheistic currents in the LGBT movement.

    1. I would have thought that any atheism among the LGBT movement (whether or not bossy) could be attacked without being taken as ‘homophobic’ (though I hate that word). On the other hand, the LGBT folks have had an awful lot of God thrown in their faces against their sexual orientation, so it’s not terribly surprising that some of them are not very devout in traditional religious ways. But if one has an argument for the existence of a deity that loves all people, of whatever sexual orientation, then they might be prepared to listen. On the other other hand, they may find the evidence for the existence of any deity of any kind to be sparse – but at least that’s not a debate that necessarily varies with one’s acceptance of their orientation.

    2. The Obama Administration has not “ignored” DOMA. For now, it’s the law, and it’s being enforced (e.g., by the IRS in tax matters). What the Administration has done is refused to defend it on Constitutional grounds.

  4. It only matters who wins if you believe in the charade. Once you’ve seen behind the wizard’s curtain, you can no longer do so without deceiving yourself. I haven’t seen an honest election in all the time since I reached voting age a few years after Tricky Dick resigned. It’s gotten to the point where electoral corruption is openly practiced and expected from all sides (their side cheats so we have to.

    For all the promise of hope and change, Obama’s presidency is no less objectionable to me than Bush’s was, for all the same reasons. To me there’s no significant difference at all in the areas that matter — the differences come down to mostly insignificant matters of personal taste and personality. If I weren’t already disillusioned by the electoral process, I surely would be now if I had believed all the hopey-changey hype and voted for the guy expecting real change in areas that matter to me.

    You can vote for one of two candidates, either one of which will end up doing all the things you were voting against, or you can vote for a candidate who has zero chance of winning the election. Them’s yer choices. Welcome to “democracy”. Four years hence we can all pretend the fate of the “free” world hangs in the balance of a presidential election again.

    1. not necessarily ‘all’ the things you were voting against. Bush started the war with Iraq that cost the US billions of dollars a month for years and a lot of lives, not to mention what it cost the Iraqis – but Gore would not have done that. Bush revoked large numbers of regulations that protected the environment so his cronies could rape the land and enrich themselves – Gore would not have done, and Obama has not done this. Bush father and son put right-wing ideologues on the Supreme Court; Obama’s appointments are not in the same class on his side.

      Politics is the art of the possible, and maybe it would have been possible for Obama to have tried to resolve the financial crisis without rewarding risk-favorable bankers as much. One hopes it would have been possible for him to reduce the infringement of civil libertes both in the national security area and in the war on drugs, but imagine the uproar of the wingnuts if he had ‘weakened security’ or not stood up against ‘corrupting youth’.

      He could almost surely not have got a better deal on health care, even if every developed country in the world has a better system than Obamacare – and do you really think it makes no difference to the tens of millions of people who have health insurance with Obamacare if President Romney repeals it?

      Nothing is perfect, but it is extremely clear which of the current choice of evils (if that’s how you see it) is the lesser, and real people’s lives are affected by the choice (including your choice.)

      1. “…if President Romney repeals [Obamacare]?”

        I’m going off topic here, but your question leads to another interesting question that hasn’t received enough attention. What would actually happen to the PPACA if Romney wins? A president cannot unilaterally repeal a law and, even under the worst possible electoral outcome from a Democratic Party perspective, enough Democrats will remain in the Senate to filibuster any legislative repeal coming out of the House. So, in any event, the PPACA will stand.

        A President Romney might choose to not enforce the law, but doing so will almost certainly lead quickly to multiple lawsuits as people are denied the material benefits the law guarantees. Attached to those lawsuits will be readily apparent human suffering. Does a Romney administration attempt to block or stall these suits? If so, what happens when “justice delayed is justice denied” equals death? I can easily imagine websites popping up all over the place putting individual faces and stories to these deaths. What happens when as the body count rises? A recent report puts a low-ball estimate of annual deaths due to lack of medical insurance at 26,000. That’s over 70 people per day or nearly three per hour. How long does a President Romney holdout under this pressure? I bet he wouldn’t want this to be part of his legacy? Even if I’m wrong (given his history as governor of Massachusetts, I don’t think I am), I bet a significant number of these deaths will be people with ties to Republican voters, enough to convince the Republican Party that further delay would do irreparable damage to their brand.

        1. You’re overly optimistic in assuming that any form of Democratic filibuster would survive a Republican 50 + 1 majority in the Senate.

        2. learn what “reconciliation” means. Even if the Senate does not flip there might be a conservative Dem who can be pealed off.

        3. What about the GW Bush tactic of issuing orders saying that he won’t be bound, or mostly won’t be bound, by duly passed legislation? I never understood the legal basis for that, but Bush did it regularly.

          The 26,000 deaths from lack of insurance don’t seem to bother Republicans now in claiming that the ACA is the devil’s work. Why would an increase in the future bother them? Maybe some of the people dying have ‘ties to Republican voters’, but only the poor and stupid ones that vote Rep despite their interests, and not the rich and the wingnuts – and the big insurance companies – who set Republican policy.

          And given the contents of the platform adopted in August in Tampa, and everything that Republicans have said for the past several years, is any futher damage possible to their brand? Will anything actually penetrate the perceptions of people as severed from reality to consider voting for Romney?

      2. but Gore would not have done that

        We don’t know what Gore would or would not have done as POTUS, because it didn’t happen. We only know what he says he would or wouldn’t do.

        Obama has disappointed folks many times with the stark contrast between what he said he would do, and what has been actually possible for him to do, as you say.

        I can’t see any way that objective analysis of historical fact leads anywhere but the conclusion that the game is rigged and Presidents do only what they’re allowed to do. Call it shadow government or simply political climate, the result is the same.

        I can easily see the Iraq war from a Gore administration. We might have been presented with more appearance of reluctance (sincere or otherwise) than what we saw with Bush, but I’m convinced it totally could have happened.

    2. Gotcha.

      Since you’re not gay, gay rights don’t matter to you.

      Since you’re a “free MAN,” women’s rights don’t matter to you.

      Since apparently you don’t breathe oxygen, environmental policy doesn’t matter to you.

      And the claim that Democrats participate in “electoral corruption” is a Fox News lie.

      Other than that, you’re doing fine. But the current location of your head is probably interfering with vision as well as digestion. Perhaps you’d like to think about moving it.

      1. Gotcha.

        Oh yeah, in what sense, and if so, what’re ya gonna do with me now? ;>)

        I care about all those things every bit as much as you do. I just don’t share your perception that my vote for POTUS exerts significant influence over those things. I’m of the “all politics are local” persuasion. I pay the most attention to what’s happening at the local level and consider Presidential elections an opportunity for those in power to move huge sums of money around while the rest of us are distracted by late night comedy shows and viral web videos illustrating the absurdity of the entire process.

        But the current location of your head is probably interfering with vision as well as digestion. Perhaps you’d like to think about moving it.

        Heh, as Roseanne Barr astutely observed: “pot can cause some pretty strange behavior by lots of people who don’t smoke it.

      2. P.S. Any idea that Democrats don’t participate in electoral corruption is as absurd on it’s face as it is naive. One can argue about degree if one is into moral relevance, but that’s about it.

        If I didn’t know better, I’d suspect you’ve gotten into some of that sooper-dooper-stoopor high-potency stuff you’re always warning everyone about.

  5. 1. I’m not sure it is going up to the Supreme Court. Roberts won’t want it–he wants to keep his ammunition dry for upholding the plutocracy and attacking women. It still takes only four votes to grant cert, but the moderates on the court have read their Bickel, and the wingnuts know that Kennedy’s libertarianism and federalism will tempt him to strike DOMA.
    2. Judge Jacobs’ decision was a technical mess. It conflated gender discrimination with discrimination against gay folk. (Gay folk were never forbidden to marry people of the opposite gender, and some did.) This preserves transsexual discrimination, at least if you take the logic of the decision seriously. It also makes Jacobs’ choice of intermediate scrutiny a simple no-brainer, in a legal sense, rather than something that had to be invented. The opinion also seemed to argue from the premise that since John Galt could have been gay, gay folk should have rights. Yuck! But a win is a win, even if the play is ugly.

  6. This decision creates an inter-circuit split on the standard of review, for equal protection purposes, of classifications based upon sexual orientation. Supreme Court review is highly likely.

    For those who support gay rights, it is probably better that that standard of review be clarified in a case such as this one, which does not involve eligibility or ineligibility to enter into a same sex marriage. The marriage cases in the pipeline would probably be remanded for further consideration in light of whatever standard emerges.

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