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Enforcing the Indefensible

Jon Stewart asks, now that Obama is not defending the Defense of Marriage Act, why is he still enforcing it? Meanwhile, Rick Santorum puts his foot firmly in his mouth trying to defend DOMA.



  1. starluna wrote:

    While I agree with the larger point that DOMA is stupid and is causing all kinds of unnecessary suffering of all kinds, and that the Obama administration could be doing more to protect the rights of same sex couples, Stewart does obscure some of the legal reality here.

    First, Obama directed the DOJ to stop defending DOMA in court. This means that all of the court cases in which the constitutionality of DOMA is being challenged is in effect not getting anything near the “vigorous defense” that it otherwise would. And it saves money. This means that the courts will have to make decisions largely on the basis of arguments made by those challenging DOMA, hopefully paving the way towards a final decision that DOMA is in fact unconstitutional. It is actually a risky strategy, but that is what Obama’s direction to the DOJ was.

    Unfortunately, the Executive is constitutionally bound to enforce laws passed by Congress until they are determined to be unconstitutional in court or until Congress repeals the law. Since DOMA has not yet been repealed, and since the challenges are still working their way through the courts, the executive branches are technically required to enforce the law.

    With that said, there are plenty of legal ways around the law as it applies to deportation proceedings. For example, DHS could have delayed decisions on deportation until the constitutionality has been decided by the Supreme Court. This is how they are getting around deporting young people while we wait on the DREAM Act to be passed. That DHS chose not to do is indicative of the conservative culture of the agency, as well as the lack of clear direction by the Obama administration.

    For other areas, like tax policy, there really isn’t much that can be done until the law is repealed or overturned by the courts.

    Saturday, August 20, 2011 at 8:45 am | Permalink
  2. Arthanyel wrote:

    Well said, Starluna, I was making the same point to my friends. The law is a strange thing 🙂

    Saturday, August 20, 2011 at 9:19 am | Permalink
  3. rk wrote:

    Bush sure managed to kill the suit against Microsoft.

    Saturday, August 20, 2011 at 9:49 pm | Permalink