swansont Posted February 23, 2011 Share Posted February 23, 2011 The DoJ will not defend the Defense of Marriage Act in two upcoming actions http://whitehouse.blogs.cnn.com/2011/02/23/attorney-general-declares-doma-unconstitutional/ Interesting part about this to me is this: In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases. The wording seems to imply that he government would be obligated to defend if there were legal precedent, and can only (or it's easier to)choose this path because there is no precedent in those jurisdictions. If that's the case, it sheds light on why the White House would defend positions that seem contrary to the ideology of the current occupant. Government representatives are obligated to enforce the law even if they don't agree with it — and DOMA will continue to be enforced — so it seems that the justice department is obligated to argue according to reasonable precedent. This appears to be confirmed in the letter. As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. Link to comment Share on other sites More sharing options...
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