USCCB Decries Refusal to Support Defense of Marriage Act

[Brendan]

I disagree. President Obama took an oath to defend the Constitution. If this law is unconstitutional then it is correct for the President to stop defending it. The AG’s letter says that the case has been examined and that parts of DoMA appear to be unconstitutional under the First Amendment of the Constitution the President is sworn to defend.

So you are pretty much saying that if a President can get a AG to agree, he can declare any US law to be unconsititutional until the SCOTUS says otherwise?.

 

[JimG]

DOMA passed in the House by a vote of 342 to 67, and in the Senate by a vote of 85 to 14. It was signed into law by President Clinton in 1996.

Thirty-three states have voted on gay marriage, 33 states have voted against it.

The reason DOMA was proposed is this: Under the “full faith and credit” clause of the constitution, states must recognize marriages performed in other states. Consequently, any one state recognizing gay marriage effectively imposes gay marriage nationally. The will of the electorate and of state legislators can simply be nullified.

 

[rossum]

So you are pretty much saying that if a President can get a AG to agree, he can declare any US law to be unconsititutional until the SCOTUS says otherwise?.

No. The President can ask the Attorney General not to put up a defence in cases where he does not consider the law to be constitutional. There has to be a challenge to the law in progress.

The AG then writes to the Speaker of Congress to inform him of this decision. This is the letter we have been discussing. The Speaker may decide to take over the defence of the law. Presumably Rep Boehner is currently making up his mind what to do.

As with many things in the Constitution, there are checks and balances built in. If the President decides not to defend the law then the Speaker can undertake the defence instead.

rossum

 

[rossum]

DOMA passed in the House by a vote of 342 to 67, and in the Senate by a vote of 85 to 14. It was signed into law by President Clinton in 1996.

Thirty-three states have voted on gay marriage, 33 states have voted against it.

The reason DOMA was proposed is this: Under the “full faith and credit” clause of the constitution, states must recognize marriages performed in other states. Consequently, any one state recognizing gay marriage effectively imposes gay marriage nationally. The will of the electorate and of state legislators can simply be nullified.

If the “will of the electorate” is against the Constitution then yes it can. No matter how Congress votes, no matter how many states vote in favour no law re-establishing slavery will be constitutional. The Constitution is there in part to prevent a majority unjustly trampling over the rights of a minority. The USA is not an elective dictatorship, it is a Constitutional Republic. Democracy only has as much power as the Constitution allows.

I shouldn’t have to explain this to you. Surely you got this in school?

rossum

 

[Beau_Ouiville]

So you are pretty much saying that if a President can get a AG to agree, he can declare any US law to be unconsititutional until the SCOTUS says otherwise?.

Look, there is a case in controversy in court which involves the federal government. The AG realizes that his legal position is untenable. Lawyers have a responsibility not to make arguments in court which they know are unsupportable. Its simple as that.

Neither the AG nor the president has declared anything to be unconstitutional nor have they refused to enforce the law. Arguments to the contrary are just so much hot air.

 

[TMC]

Look, there is a case in controversy in court which involves the federal government. The AG realizes that his legal position is untenable. Lawyers have a responsibility not to make arguments in court which they know are unsupportable. Its simple as that.

Neither the AG nor the president has declared anything to be unconstitutional nor have they refused to enforce the law. Arguments to the contrary are just so much hot air.

And despite some rhetoric immediately after the announcement, neither the House nor any individual Republican legislator has said they will intervene to defend DOMA. The AG formally informed Speaker Boehner over a week ago that he has standing to defend the legislation, and that the DOJ will assist in transitioning the case to the House. So far, Boehner has not agreed to defend DOMA, either.

 

[1holycatholic]

I cannot because nowhere has Congress passed the Law of Gravity. SCOTUS can only rule on legislation passed by Congress, or the individual states.

Civil homosexual marriage does exist in many places.

Congress can pass or not pass whatever law they want. Congress can’t change reality, neither can SCOTUS.

Homosexual “marriage” does not exist anywhere. It cannot exist. That’s reality. No law can alter that reality.

 

[JimG]

If the “will of the electorate” is against the Constitution then yes it can. No matter how Congress votes, no matter how many states vote in favour no law re-establishing slavery will be constitutional. The Constitution is there in part to prevent a majority unjustly trampling over the rights of a minority. The USA is not an elective dictatorship, it is a Constitutional Republic. Democracy only has as much power as the Constitution allows.

I shouldn’t have to explain this to you. Surely you got this in school?

rossum

The republic is not, nor was it intended to be, a dictatorship of the majority. Neither is it intended to be a dictatorship of the Judiciary. (Indeed the Framers were careful to reserve undesignated powers to the States and the people.) Yet that seems to be how it is working out. The SCOTUS found–somewhere–a right to abortion in the Constitution that everyone has missed. Now it’s a constitutional right by reason of discovery among the penumbras. I suspect if the Court looks under enough penumbras it can find a right to homosexual marriage, no matter that it is a contradiction in terms. That will further entrench the dictatorship of the Judiciary.

President Andrew Jackson once said of a Court decision, “John Marshall has made his decision, now let him enforce it!” Did he not consider the Judiciary to be the supreme dictator? Apparently, rescinding DOMA by judicial fiat may be sufficient to impose homosexual marriage on every State, no matter how its citizens and legislatures have voted.

 

[rossum]

The republic is not, nor was it intended to be, a dictatorship of the majority. Neither is it intended to be a dictatorship of the Judiciary. (Indeed the Framers were careful to reserve undesignated powers to the States and the people.) Yet that seems to be how it is working out. The SCOTUS found–somewhere–a right to abortion in the Constitution that everyone has missed. Now it’s a constitutional right by reason of discovery among the penumbras. I suspect if the Court looks under enough penumbras it can find a right to homosexual marriage, no matter that it is a contradiction in terms. That will further entrench the dictatorship of the Judiciary.

President Andrew Jackson once said of a Court decision, “John Marshall has made his decision, now let him enforce it!” Did he not consider the Judiciary to be the supreme dictator? Apparently, rescinding DOMA by judicial fiat may be sufficient to impose homosexual marriage on every State, no matter how its citizens and legislatures have voted.

Congress has to respect the Constitution. If a law is found to be unconstitutional then that law is, rightly, struck down. A lot of people think that DoMA is unconstitutional. We shall have to wait and see what the Supreme Court says.

rossum