The real surprise on Wednesday wasn't that the Obama administration decided it could no longer legally defend the federal Defense of Marriage Act, which mandates that the federal government not recognize same-sex marriages and stipulates that states need not recognize same-sex marriages from other states. It's that it took so long to get here. ...
From now on, explained Holder, the administration will continue to enforce DOMA—but it won't defend it, because it doesn't pass the heightened standard of scrutiny it should receive in the courts. ...
The president seems to have finally acknowledged a truth played out at the Proposition 8 trial in California last summer: Virtually all of the arguments advanced to deny gay couples the right to marry are based on moral animus and junk science, rooted in discredited cases like Bowers v. Hardwick and in unfounded bias that is increasingly hard to defend in open court.Dahlia Lithwick, September 22, 2010:
... I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?You might wonder: why is it OK for Obama's Justice Department to stop defending a law in court because they believe it is unconstitutional, but it's "weird" for a Senator to vote against a law they believe is unconstitutional when this is a "court's job"? The answer is that Lithwick agrees with Obama's constitutional views, but not O'Donnell's.
But, at least we're making progress. Two out of three branches are now entitled to have an opinion about the constitution, and to act on that opinion.
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