Libertarian Hawk


DOMA Is Not Roe v. Wade

March 02, 2011 By: Scott Spiegel Category: Gay Rights


Image by Scott Spiegel via Flickr

President Obama announced last week that his Attorney General Eric Holder would no longer be defending the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which Congress passed in 1996.

His declaration may have had something to do with the fact that Ninth Circuit Court Justice Stephen Reinhardt and federal trial judge Joseph Tauro of Massachusetts ruled across three separate cases in 2009 and 2010 that DOMA was unconstitutional.

Obama’s Justice Department will be submitting its official response next week to two fresh lawsuits against DOMA filed last year in New York and Connecticut.  The Department is not expected to argue in favor of the law’s constitutionality.

Constitution-revering conservatives have responded to Obama’s announcement by howling that there is no precedent for his declaration in all of American history, that Obama is overturning DOMA just because he doesn’t like it, and that his actions may be grounds for impeachment.

Jonah Goldberg of National Review claimed Obama has “thrown in the towel on the Constitution.”  On her radio show, Monica Crowley stooped to the level of Wisconsin pro-union protestors by labeling the president “Oba-Mubarak.”

Newt Gingrich declared that Obama’s actions could lead to a constitutional crisis.  He offered the hypothetical counterexample of President Sarah Palin declaring that she doesn’t like Roe v. Wade, thinks it’s unconstitutional, and will no longer allow the executive to enforce the right to an abortion.

There’s just one little difference between the Obama and Gingrich scenarios: no court has ever ruled Roe v. Wade unconstitutional.

The Supreme Court, the highest court in the land, had the last word on that matter in 1973, and no lower court or the Supreme Court has declared the unconstitutionality of the fundamental right to an abortion since then.  State courts have chipped away at the edges of the ruling and allowed restrictions on abortion, some of which the Supreme Court has upheld, but no court has ever reversed the Supreme Court’s ruling on the basic right to an abortion.  In fact, because the Supreme Court has already ruled on the matter, only that court would be able to reverse its 1973 ruling.

In the Gingrich scenario, Palin would indeed be imposing her preference on the nation illegally.

In the Obama scenario, in contrast, his Justice Department would be upholding the interpretation of the law offered by two members of the judiciary in three different court cases.

Obama hasn’t even said his Justice Department isn’t going to enforce the law—only that it will not be arguing in court that the law is constitutional.  Which, you may remember, is what two of the highest courts in the land to rule on the constitutionality of DOMA have found in three separate cases.

Even after Obama’s announcement, courts will still be able to rule on DOMA, regardless of the arguments Eric Holder declines to proffer in support of it.  Outside parties, including Congressmen who support the law, will still be able to file friend-of-the-court briefs outlining the exact same by-now-familiar arguments the Justice Department will no longer be citing.

Other conservatives who are upset with Obama’s actions have argued that Florida District Court Justice Roger Vinson recently found ObamaCare unconstitutional, yet Obama is still implementing that law.

Well, yes—clearly Obama is ideologically disposed toward overturning DOMA and not Roe v. Wade or ObamaCare.  But that doesn’t mean he does not have the prerogative to disavow the identified-as-unconstitutional DOMA, or the obligation to uphold the never-identified-as-unconstitutional Roe v. Wade.

As for ObamaCare, two justices had already (ludicrously) upheld the constitutionality of ObamaCare before Virginia District Justice Henry Hudson ruled the individual mandate component of the bill unconstitutional last December, and before Justice Vinson ruled the entire bill unconstitutional in January.  So while one would hope for Obama to take Hudson and Vinson’s cues once their rulings came down, one wouldn’t hold one’s breath.  A third justice has since found ObamaCare constitutional, which sadly gives liberals more cover for continuing to defend ObamaCare until the Supreme Court rules on it.

In the same interview in which he claimed Obama couldn’t decline to enforce DOMA, Gingrich declared that Justice Vinson’s ruling represented “solid grounds for the House to cut off all funding for implementation.”  Apparently the link between Gingrich’s stances on DOMA and ObamaCare was that both criticized supposedly unconstitutional actions of Obama’s.  Yet evidently Justice Reinhardt and Tauro’s rulings on the unconstitutionality of DOMA didn’t figure into Gingrich’s equation.

Other conservatives have questioned the timing of Obama’s announcement, suggesting that it was made to distract voters from the economy or set a trap for Republicans—as though this determined the propriety of Obama’s non-enforcement of a law.  Gingrich noted that Obama had campaigned for president in opposition to gay marriage and promised to uphold DOMA, and is therefore breaking a campaign pledge—again, as though this has anything to do with the legality of Obama’s decision not to defend the law.

Without trying to read Obama’s mind, I can say only that his motives for no longer defending DOMA have absolutely nothing to do with the constitutional appropriateness of his decision.

Here are some hypothetical actions that would be unconstitutional if Obama actually took them: Not enforcing DOMA after the Supreme Court ruled it constitutional.  Enforcing DOMA after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after Congress cut off funding for implementing it.

But deciding not to defend an argument behind one section of a law while still enforcing it, when two of the highest courts in the land have deemed the law unconstitutional in three cases—sorry, but that is not unconstitutional.

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Obama Misquoted: “I Looked Fierce on the Cover of The Advocate!”

October 20, 2010 By: Scott Spiegel Category: Gay Rights

Image by Scott Spiegel via Flickr

President Barack Obama demonstrated his pro-gay credentials last week by having Senior Advisor Valerie Jarrett renounce comments she had made that 15-year-old gay suicide victim Justin Aaberg had been bullied because of a “lifestyle choice” he had made.

Obama backed up Jarrett by announcing at an MTV townhall meeting that being gay is “not a choice,” thus discovering something Ronald Reagan figured out 32 years ago.

The remarks topped off a busy week of fierce advocacy from our Fierce Advocate for gay rights, coming as it did after Obama’s Justice Department filed a fierce brief appealing U.S. District Judge Joseph Tauro’s overturning of the Defense of Marriage Act (DOMA), and an advocatory brief appealing U.S. District Judge Virginia A. Phillips’ injunction against Pentagon enforcement of Don’t Ask Don’t Tell (DADT).

The administration evidently hates DADT so much that it disobeyed Philips’ injunction and upheld the law by allowing a Texas recruiting station to refuse reenlistment to decorated veteran Omar Lopez, who had been ousted after five years of service in the Navy for “homosexual admission.”

Obama has been insisting that DADT “will end on my watch.”  Given his actions over the past year-and-a-half, perhaps what he really means is that when someone—anyone—other than him takes steps to repeal it, he’ll be “sure to watch.”

Meanwhile, evidence for the administration’s ludicrous claim that immediate lifting of the ban will have “enormous consequences” for the military has yet to materialize.

In the midst of all this fierce advocacy, the national gay Republican group Log Cabin Republicans (LCR) won an actual victory last Tuesday, in the form of Phillips’ injunction against DADT, the next step in the resolution of the case LCR had successfully filed opposing the policy.

LCR and fellow gay conservative group GOProud also called out New York gubernatorial candidate Carl Paladino for his lunkheaded complaints to a group of conservative orthodox rabbis in the Bronx that homosexuality was not a “successful or valid” option and that schools shouldn’t “brainwash” students into accepting it.

The effect of denouncements by these and other Republican groups was that Paladino almost entirely walked back his comments within 24 hours of being criticized, concluding with this statement on Tuesday—“I am 100 percent unequivocally pro gay rights, except for one thing: gay marriage”—which, if true, technically puts him on the same place on the political spectrum on gay issues as Obama.  (A report late last week that Paladino had once been the landlord for two popular Buffalo gay clubs, Cobalt and Buddies II, arguably makes him even more fabulous than Obama.)

Paladino remarked, “I’ve been a high supporter of the gay community my entire career and I will continue to be.  The Log Cabin people know that.  The gay community in Buffalo knows that.  They know my nature and they know the way I’ve been.  The real message is getting out.”

As regressive as Paladino is in his personal beliefs, he is indisputably more susceptible to moderation on gay issues than his rival Andrew Cuomo is on taxes, government regulation, and state interference in economic matters.  Did I miss Cuomo’s public statement asserting, “I’ve been a high supporter of the Constitution and limited government my entire career and I will continue to be.  The Tea Party people know that.  The conservatives in Albany know that.  They know my nature and they know the way I’ve been.  The real message is getting out.”

Paladino’s reversal cost him the endorsement of Rabbi Yehuda Levin, leader of the Orthodox Jewish community to whom Paladino originally made his statements on homosexuality, thus negating the effect of his making the comments in the first place.

Anyway, what role will Paladino actually have in gay issues in his (self-declared) one term as governor, except for vetoing gay marriage should it pass (he has stated he will uphold it if decided in a referendum)?  In contrast, is Cuomo as susceptible to withdrawing his support for crippling taxes on high earners, ObamaCare, cap-and-trade, etc., in the 12 terms he’ll serve if voted into office?

Paladino’s lieutenant governor candidate Greg Edwards similarly demonstrated his loathing of gays by attending a Log Cabin political action committee fundraiser at the Soldiers’ Sailors’ Marines’ Coast Guard & Airmen’s Club in Manhattan last Tuesday, the day Paladino apologized for his comments.  The event’s speakers included New York Republican State Committee Chairman Ed Cox and two pro-gay marriage Republican New York State Assembly members, as well as Republican minority leader B. Dean Skelos, who promised to bring gay marriage back up for a vote if the GOP becomes the majority party next year and urged all Republicans to feel free to “vote their conscience.”

In other recent Republicans-are-doing-more-for-gays-than-Obama news, Republican-appointed Republican judge Vaughn Walker overturned the anti-gay marriage referendum Prop 8 in California two months ago.  The lawsuit was filed by the two lawyers who argued Bush v. Gore in 2000, and the effort was spearheaded by one of them (hint: it was the Republican).

The growing list of prominent Republicans who support same-sex marriage now includes: Dick Cheney, Ted Olson, Laura Bush, Glenn Beck, Cindy McCain, and Arnold Schwarzenegger.

The list of Democrats who oppose gay marriage still includes: Barack Obama.

For 20 months, the Obama administration has been steadily doing everything it can to bolster the case that Democratic politicians are no better on gay issues than Republican politicians.  Last week was merely a banner week for Obama’s demonstration of this fact.

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