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BREAKING: DOJ announces they’ll no longer defend DOMA in court

DOMA trials Marriage equality

By Adam Bink

Update: This is amazing news. We at Courage put together an open letter to thank the President for taking this action, and to ask him to speak out for the freedom to marry.

It’s time, Mr. President.

Please sign here.

And share here on Facebook, and here on Twitter.

Big news that just landed in my inbox (bolding mine)

STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.  Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.  While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.  In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in such cases.  I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.  We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.  I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.  The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.  At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one.  Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA.  The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional.  Congress has repealed the military’s Don’t Ask, Don’t Tell policy.  Several lower courts have ruled DOMA itself to be unconstitutional.  Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.  But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Big news and good on the Administration.

Consequently, Attorney General Holder sent the following letter to Speaker Boehner:

LETTER FROM THE ATTORNEY GENERAL TO CONGRESS ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC  20515

Re:  Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.   Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision.  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.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.  As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation.  It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies:  (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.”  See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.  First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today.  Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.”  Lawrence v. Texas, 539 U.S. 558, 578 (2003).

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.”  Cleburne, 473 U.S. at 445.  And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.”  Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.”  Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality).  Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives.  See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.  We have carefully examined each of those decisions.  Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).  Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings.  And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny.  Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.  But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.”  Clark v. Jeter, 486 U.S. 456, 461 (1988).  Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.”  United States v. Virginia , 518 U.S. 515, 535-36 (1996).  “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.”  Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review.  Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.  The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.  See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut.  I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.  To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.  This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

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.  However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one.  “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.”  Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).  This is the rare case where the proper course is to forgo the defense of this statute.  Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.  Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law.  If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.  Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.  We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011.  Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.
Attorney General

______________________________________

i DOMA Section 3 states:  “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

ii See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).

iii While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women.  See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216  (1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920).  In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) (“Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowers, 478 U.S. at 192)).

iv See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266–67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).

v See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability).  As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in “responsible procreation and child-rearing.”  H.R. Rep. No. 104-664, at 13.  As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

vi See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).

vii See, e.g., H.R. Rep. at 15–16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that most people  . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many people . . . think is immoral”); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage—procreation and child-rearing—are  “in accord with nature and hence have a moral component”); id. at 31 (favorably citing the holding in Bowers that an “anti-sodomy law served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable”); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that “[t]his Court has no business . . . pronouncing that ‘animosity’ toward homosexuality is evil”).

297 Comments Leave a Comment

  • 1. Lar  |  February 23, 2011 at 2:25 am

    I cant wait

  • 2. NOM WORLD  |  February 23, 2011 at 2:29 am

    Holy Cr@p

  • 3. DazedWheels  |  February 23, 2011 at 2:32 am

    Oh HELL YES!!

  • 4. Lesbians Love Boies  |  February 23, 2011 at 2:32 am

    Wow, just wow!

  • 5. Kathleen  |  February 23, 2011 at 2:34 am

    This is huge.

  • 6. LCH  |  February 23, 2011 at 2:34 am

    ♀♀=♂♂=♀♂=∑♡

    is speechless…..

  • 7. Lesbians Love Boies  |  February 23, 2011 at 2:36 am

    I so wish I didn't have a conference call coming in in 2 minutes – I would love to read this entire article. My heart is pounding. Joy.

  • 8. DazedWheels  |  February 23, 2011 at 2:36 am

    Forgot to check the box. YIPPEE!

  • 9. Richard A. Jernigan  |  February 23, 2011 at 2:38 am

    Well, I guess now, people will get to see just how ridiculous Mitch McConnell and John Boehner really are. Because you know that they will step up to assert that DOMA is constitutional, and John McCain will join with them. I also expect Lindsay Graham from SC to do so, and Richard Burr of NC. Am I missing anybody?

  • 10. Gregory in Salt Lake  |  February 23, 2011 at 2:38 am

    !!!!!!!!!!!!!!!!!!! yay !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! I had good dreams about this last night!!

  • 11. Ronnie  |  February 23, 2011 at 2:38 am

    NO…MORE…….D..O..M..A…Discrimination go away….section 3 should be removed from use you see for its unconstitutionality…..EQUALITY NOW!!!!!!!….<3…Ronnie

  • 12. Ed Cortess  |  February 23, 2011 at 2:41 am

    HURRAY!!!!!

  • 13. David in ME  |  February 23, 2011 at 2:41 am

    Holy COW!!!

    I wanna perscribe and then I'll read it…

    Dave in Maine

  • 14. Ed Cortes  |  February 23, 2011 at 2:42 am

    I was so excited, I mis-typed my name!!

  • 15. Leo  |  February 23, 2011 at 2:44 am

    <cite>Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.</cite>

    What exactly does this mean? That the government will also dismiss its appeal in the First Circuit? (Even though First Circuit has a controlling precedent and applies rational review) Will it ask the court to let Congress members intervene and take its place in the appeal?

  • 16. David in ME  |  February 23, 2011 at 2:45 am

    So far, this is all that's on NYT:

    BREAKING NEWS12:38 PM ET
    Obama Administration Drops Defense of Federal Law Barring Recognition of Gay Marriage

  • 17. paula  |  February 23, 2011 at 2:47 am

    great news, but… now that congressional bigots will be able to take over defending DOMA, it seems to me that they're likely to mount a much more vigorous defense and do their best to protect it until the bitter end.

    so as much as obama's defense of DOMA felt like a slap in the face, it seems to me having a quasi-ally defending the act may have given a better chance of success than letting the rabid right do it.

  • 18. Douglas  |  February 23, 2011 at 2:48 am

    wow, what incredibly great news. I bet Brian, Maggie and the rest are sh$tying their pants. Now the political clout that will be needed for the conservatives to defend will be huge. can't wait to see what NOM posts on their site about this. given all of the different marriage, civil union activity in individual states, there is little doubt in my mind that the Supreme Court will be weighing in on this. They don't like separate but equal and hate different standards across the board. hence, marriage will need to be addressed.

    what a beautiful day!!!

    Also, been lurking here since the beginning of this site.. Thanks to everyone for all of the information. Just had to comment about this news. Btw, in Colorado.

  • 19. Straight Dave  |  February 23, 2011 at 2:49 am

    Holy shit!!! That was out of the blue.

    This just warps my mind because I had begun to believe all the doubters that said Obama really didn't care and just wanted to dodge politically-delicate decisions that would benefit the LGBT community.

    I haven't read the whole thing yet, so I wonder exactly how the MA (my state) cases in the 1st circuit are affected. First quick glance suggested he will stop defending all of them anymore.

    I would love to see Congress try to step in and defend them as an intervenor. That will put the GOP in a real political bind. By Nov 2012, defending DOMA will not look like a very attractive choice to the majority of the USA. Look how quickly the tide turned on DADT, 65-31 in the Senate after all the whining that was done.

    This is called LEADERSHIP, Mr President. It's about time! Now I won't be able to work the rest of the day. Oh boohoo

    Go Obama!!
    Go us!!!
    What a pickup that was after the Prop8 debacle.

  • 20. Joel  |  February 23, 2011 at 2:50 am

    Words fail me. The tears haven't, though.

    A question, though. When Section 3 is either repealed or found unconstitutional, will couples who married in one state (where marriage equality is fact), but live in another state (that's still in the dark ages), would that couple still be entitled to the federal benefits that Section 3 currently denies?

  • 21. Michael  |  February 23, 2011 at 2:51 am

    Can someone fully explain this though, because I know what I want it to mean and I'm pretty sure it's not that. Obviously, it's a good thing, but what does it ultimately mean?

  • 22. Straight Dave  |  February 23, 2011 at 2:53 am

    OK, what the hell standing does Congress have in Federal appeals court? Can somebody explain to me how they have been harmed, I mean legally harmed, not just getting their fat egos bruised?

  • 23. Michael Adrian  |  February 23, 2011 at 2:54 am

    While you may be correct, I think that a vigorous defense of DOMA might end up backfiring. It just affords the public another opportunity to hear how the conservative right argues for marriage "protection" and, as in the case of State Senator Brochin, may just turn people off. Force the bigotry into the light and expose the heterosupremacists for what they are.

    Surprising and joyful news!

  • 24. Joel  |  February 23, 2011 at 2:54 am

    I think though, that they will end up trying to defend it in a venue of heightened scrutiny, which will be a losing battle. And they will show themselves for the fools and bigots that they are.

  • 25. AnonyGrl  |  February 23, 2011 at 2:57 am

    Wow!!!! I needed some good news today, and this is HUGE!!! Wow!

  • 26. NetAmigo  |  February 23, 2011 at 2:57 am

    Good. About time. Now do the same for DADT.

  • 27. John  |  February 23, 2011 at 2:57 am

    WOW!!!!!!! This is *GREAT* news. Now they need to do this on section 2 (the part that allows states to refuse to recognize marriages).

    With the Feds believing it unconstitutional, can we hope for an executive order directing departments to consider all marriages valid?

  • 28. Ed Cortes  |  February 23, 2011 at 2:58 am

    From the way I read Holder's letter, the congressional record is full of hateful statements, and (IMHO) congress would be really stupid to try to defend it. Of course, that hasn't stopped them before, has it? ALso, aren't they supposed to be concentrating on the economy, jobs and the budget?

  • 29. John  |  February 23, 2011 at 2:59 am

    Section 3 is the *Federal* definition of marriage. From what I can tell, they will still defend Section 2, which allows states to refuse to recognize some marriages.

    The best argument about section 2 is, "Why can states refuse to recognize valid same-sex marriage, but cannot refuse to recognize valid marriage of 14 year olds or first cousins?" Yet, that's exactly what the law did.

  • 30. Shane  |  February 23, 2011 at 2:59 am

    Wow. Wholly unexpected and amazing. Ear to ear grin here…

  • 31. Kathleen  |  February 23, 2011 at 2:59 am

    I don't see any indication that it intends to drop the appeal in the 1st Circuit.

    The statement that addresses the Mass DOMA cases is, "Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3."

    I read that to mean the DOJ will file something with the Court stating the gov's position. Nothing has gone on the docket yet in those cases. In those cases, the gov has already submitted its opening brief and the plaintiffs' reply briefs are due Mar 1.

  • 32. Judy  |  February 23, 2011 at 3:00 am

    This is amazing!! I'm closer to getting all those financial and civil benefits of marrying my partner, Kathy! My eyes are so glazed over that I hope I'm seeing the whole thing clearly! Is this what I think it is? For real?

  • 33. Gregory in Salt Lake  |  February 23, 2011 at 3:02 am

    good comments Douglas! Welcome !
    lol @ Brian, Maggie and the rest are sh$tying their pants

  • 34. Joel  |  February 23, 2011 at 3:03 am

    I understand that; my question is more along the lines of "will Mark and I be able to file a joint federal return because our CA marriage is legal, even though we live in NV, where it's not recognized?"

  • 35. Kathleen  |  February 23, 2011 at 3:06 am

    UPDATE: Perry

    Plaintiffs' Motion to lift stay pending appeal http://www.scribd.com/doc/49407779

    Also, the document filed last week with the 9th Circuit is now available at AFER: http://www.afer.org/legal-filings/petition-to-acc

  • 36. Gregory in Salt Lake  |  February 23, 2011 at 3:08 am

    ditto! ((hugs for AnonyGrl!!))

  • 37. AnonyGrl  |  February 23, 2011 at 3:09 am

    That is a really good question, and I wonder that it might take an advanced degree in tax law to figure it out. Please, if we don't come up with one and you find an answer somewhere else, do post it back here!

  • 38. rick jacobs  |  February 23, 2011 at 3:09 am

    This all began with Prop. 8. And if you read Judge Walker's ruling, you'll see that he says that Prop. 8 does not even achieve rational basis, but he also says that strict scrutiny should be applied. Amazing.

    And now what reason does the California Supreme Court have to delay?

  • 39. Gregory in Salt Lake  |  February 23, 2011 at 3:09 am

    Thanks Dear Kathleen!!! Keep them coming! : D

  • 40. Richard A. Jernigan  |  February 23, 2011 at 3:11 am

    And in other related news, I just got this email from Hawaii News Now. governor Abercrombie will sign the CU bill into law at 2pm Hawaii time today. Here's the body of the email:

    If you have trouble reading this email, please go to http://www.hawaiinewsnow.com/Global/story.asp?S=1
    Aloha, Richard

    Historic Civil Unions Bill to be signed into law today

    HONOLULU (HawaiiNewsNow) – It's an historic day for the State of Hawaii.

    Today, Governor Neil Abercrombie will legalize civil unions for same-sex and opposite sex couples.

    The controversial law makes Hawaii one of the few yet, growing states in the country, to provide the benefits of marriage to same-sex couples.

    Ramsay Wharton is live from Washington Place this morning, where the SB232 will be signed into law at 2:00 pm today.

    She chats with Justice Steve Levinson about the bill and its implementation when it goes into effect January 1, 2012.

    Scroll thru the Video Gallery for more and Watch the WEBXTRA: Extended Interview with Justice Levinson on the legalities of Civil Unions.

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  • 41. James Tuttle  |  February 23, 2011 at 3:12 am

    WOW!!!! I'm very confused. The Perry filing is good and DOJ dropping defense is GREAT!!! Who will now defend DOMA??? And will we be once again forced to have a trial on standing for whoever decides to defend it? And Kathleen, what do you think the prospects of lifting the stay are?? Today has been quite action packed already and it is only 10:12 a.m.

  • 42. up&Adam  |  February 23, 2011 at 3:14 am

    I'm ecstatic! I know we have a long way to go, but it's such a huge step that I want to burst out bawling. After Indiana, Montana and Wyoming I was just about ready to withdraw from society altogether. Love to you all.

  • 43. Richard A. Jernigan  |  February 23, 2011 at 3:16 am

    That depends. Are California's State Supreme Court Justices subject to a retention vote like the Justices in Iowa?

  • 44. Joel  |  February 23, 2011 at 3:18 am

    It seems to me that really big, great news here is that LGBT issues will now be dealt with under the light of heightened scrutiny. But it begs the the question of whether or not the courts will follow, or be compelled to follow, the executive branc's decision.

  • 45. David in ME  |  February 23, 2011 at 3:18 am

    http://www.latimes.com/news/nationworld/nation/la

    "
    White House Press Secretary Jay Caney said the president doesn't believe the law is constitutional, thought his own personal view on gay marriage is still evolving.

    "He's grappling with the issue," Carney said this afternoon. "But I want to make a distinction between his personal views" and the legal decision not to defend the law."

  • 46. Gregory in Salt Lake  |  February 23, 2011 at 3:19 am

    tx for reminder! woot!!

  • 47. Steve  |  February 23, 2011 at 3:19 am

    A "vigorous defense" will also bring out their hatred much more clearly.

  • 48. Papa Foma  |  February 23, 2011 at 3:19 am

    All things come to him who waits — waited for this — now still waiting — Homemade strawberry wine anyone?

  • 49. Richard A. Jernigan  |  February 23, 2011 at 3:21 am

    Now if I could just remember the time difference between Hawaii and the Eastern time zone. The email also has a link in it to watch the live streaming of the signing!

  • 50. Kathleen  |  February 23, 2011 at 3:21 am

    In case you can't download files where you are, I've uploaded the Application to Shorten Time (filed with the California Supreme Court last week) to Scribd: http://www.scribd.com/doc/49408440

  • 51. Steve  |  February 23, 2011 at 3:21 am

    My guess is that you can file a joint federal return, but have to file two state returns.

    The opposite of how it is in SSM states now where you can file jointly at the state level, but need to file separately for the federal government.

  • 52. Manilow  |  February 23, 2011 at 3:21 am

    "…it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination."

    Take that, haters!

  • 53. Fluffyskunk  |  February 23, 2011 at 3:23 am

    They're not defending it, but they're still going to enforce it, absent a "final" judicial ruling? Hello, Mr. President, you're not appealing the ruling, that makes it final!

    In short, instead of appealing the ruling they're just going to ignore it! Rule of law, what's that? I'm the President, I do what I want!

  • 54. Richard A. Jernigan  |  February 23, 2011 at 3:23 am

    Here you go, Papa Foma–Deana Carter and Strawberry Wine, courtesy of YouTube!
    http://www.youtube.com/watch?v=Up06CryWQpE

  • 55. phillykarl  |  February 23, 2011 at 3:24 am

    What amazing news. Just when I was sure that I would have to move to Canada to stay with my partner. When we get married and my partner gets his green card, we're going to spend a two week vacation just following Maggie and Brian around, showing them our rings and federal benefits every chance we get. So they can share in our joy.

  • 56. Douglas  |  February 23, 2011 at 3:24 am

    They will need to raise an exorbitant amount of money to continue to defend these cases. Public opinion is changing. Wonder what Brian and Maggie will do with their next careers of hate.

    Undressing, little to no response from NOM or their related animus friends. Must be a "holy crap, now what? Conference call"

  • 57. mike  |  February 23, 2011 at 3:24 am

    What does this mean for bi-national couples ?

    I am confuse…..DOJ wont defend, but allow others to defend an unconstituional law ? and continue to abide by the law….

    is this double-talk ?

    can we apply for a k-9 ? (fiancee visa)

  • 58. nightshayde  |  February 23, 2011 at 3:24 am

    What would the timetable be on this? How soon can we expect the motion to be either granted (lifting the stay) or denied (leaving the stay in place)?

  • 59. Straight Dave  |  February 23, 2011 at 3:24 am

    IANAL.
    But I find it beyond illogical for your marriage to just go POOF if you cross a state line. Your marriage does not belong to the state, it belongs to you. Once you're married I can't imagine any court allowing you to become involuntarily unmarried, since it was a valid contract between 2 persons. There's no way any 3rd party can just blow it up.

    Sure, your new state might refuse to publicly and legally acknowledge your marriage or give you any benefits. But that is much different that just wiping it off the face of the earth as if it never happened.

    Post-DOMA, your marriage contract is with, let's say MA, and your tax benefits are with the federal gov't. There's no rational way, not even a plausible irrational way, that Texas can purport to interfere with any of those agreements. TX can only affect its own end of the business, not rip up somebody else's contract. Just…Not…Remotely…Possible.

    Even if TX wanted to try to mess things up, the Fed govt' wouldn't pay the sightest attention to them if you produced a valid MA marriage license.

    IA(still)NAL, but some things are just too GD simple to figure out.

  • 60. Carpool Cookie  |  February 23, 2011 at 3:25 am

    Just read the headline but have to say:

    SUPERCALIFRAGILISTICEXPIALIDOCIOUS ! ! !

    Oh, if only I could be a fly on the wall in the NOM offices (wherever they are)

    "I'm on my way / To freedom land…"

  • 61. Judy  |  February 23, 2011 at 3:26 am

    Sec. 3 of DOMA will still be executed, according to the documents, until it is withdrawn by congress or the courts. So, for now, no change.

  • 62. nightshayde  |  February 23, 2011 at 3:27 am

    I believe they are. I distinctly remember discussing retention votes with Mom right before the 2010 midterm elections & explaining what was going on in Iowa. Mom agreed that "no" votes in regards to retention should be cast only if a judge is demonstrably corrupt or unable to do his/her job — not merely because people don't agree with their conclusions.

  • 63. Straight Dave  |  February 23, 2011 at 3:28 am

    Yeah, just like Indiana.
    I agree, the congressional record will expose the animus all by itself. Statements that might have seemed acceptable to an ignorant and gullible public in 1996, or even the courts, aren't going to fly very far today.

  • 64. Steve  |  February 23, 2011 at 3:32 am

    It's not like it's annulled or anything. It just has no legal consequences whatsoever. That's a huge deal in some cases.

    For example given that the US has no proper health insurance system like other developed countries, a lot of companies offer to insure the spouses of employees. That's not possible for same-sex couples, costing them hundreds of dollars. And in the cases where companies offer such benefits for domestic partners, they are taxed as income.

  • 65. Straight Ally #3008  |  February 23, 2011 at 3:32 am

    Welcome, Douglas, and I'll tell you what Brian, Maggie, et al. are doing – drafting their next fundraising letter! This is a money bomb day for them.

  • 66. DebbieC  |  February 23, 2011 at 3:32 am

    I'm crying :)

  • 67. Kathleen  |  February 23, 2011 at 3:33 am

    There is no doubt that members of Congress would be allowed to step in as defendant-intervenors in the District Court. And I think they have been given Article III standing (standing to appeal) in past in cases involving legislation passed by Congress, but I'm not sure of that.

    It's not clear to me from this statement what the administration intends to do if they lose in District Court, i.e, whether or not they would file for an appeal. It's possible that that's what they're signaling with this statement:

    "We will remain parties to the case and continue to represent the interests of the United States throughout the litigation."

  • 68. Mackenzie  |  February 23, 2011 at 3:33 am

    Are you sure congress can defend it. I was under the impression that only the President and the DOJ could defend laws passed by congress. I guess the question is who in congress can defend such a bill?

  • 69. Straight Ally #3008  |  February 23, 2011 at 3:35 am

    Complicating the tax forms of same-sex married couples – well, that sure does protect marriage and create jobs!

    *eyeroll*

  • 70. Steve  |  February 23, 2011 at 3:35 am

    They can't just decide to not enforce a law. That cuts both ways. Otherwise bigots could simply decide not to enforce anti-discrimination laws.

    Until a law is either declared unconstitutional by a court or repealed in a legislative body, it's enforced. What they are doing now – saying that they believe it's unconstitutional, not defending it and giving instruction to the court – is the most they can do. It's pretty huge.

  • 71. Kathleen  |  February 23, 2011 at 3:35 am

    No. The statement makes it clear that the administration will continue to enforce DOMA as long as it remains the law.

  • 72. Lesbians Love Boies  |  February 23, 2011 at 3:36 am

    Did you notice that in the Motion to Stay, they mentioned this morning's news?

    Page 4 of actual document, page 7 of scribd doc.

    Moreover, events of this morning demonstrate that proponents likely canno tprevail even if this lengthy procedural detour were resolved in their favor. In a letter to Congress, the Attorney General of the United States announced the view of the United States that “classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Sec-tion 3 of” the Defense of Marriage Act (“DOMA”) which defines “marriage” under federal law to be “a legal union between one man and one woman” “is unconstitutional.” Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).These new developments this Court’s certification order, the California Supreme Court’s response to it, and the Attorney General’s announcement that the government will no longer defend DOMA are materially changed circumstances that warrant vacatur of this Court’s decision to grant a stay pending appeal.
    See SEACC v.U.S. Army Corps of Eng’rs
    , 472 F.3d 1097, 1101 (9th Cir. 2006).

    Boies and Olson are FAST!

  • 73. Shrpblnd  |  February 23, 2011 at 3:37 am

    Congress automatically has standing in Federal Court because they wrote the law. This is extended to the Executive Branch, which is why the Justice Department was previously defending DOMA. However, with the Justice Department's support, congress will now be hard pressed to defend DOMA.

  • 74. Straight Ally #3008  |  February 23, 2011 at 3:37 am

    The elephants in the room are full faith and credit (Article IV, Section 1) and equal protection (Amendment 14). The professional bigots can't dodge them forever.

  • 75. bJason  |  February 23, 2011 at 3:37 am

    Holy exploding thug-heads, Batman!!

  • 76. James Turner  |  February 23, 2011 at 3:40 am

    As a previous commenter mentioned, this action by Obama shows leadership. It also has the potential to change the nature of the dialogue surrounding marriage equality, by giving the first real imprimatur of federal acceptance at the highest levels.

  • 77. Kathleen  |  February 23, 2011 at 3:41 am

    First, be aware that DOMA is still the law and the administration will continue to enforce it until it is either repealed by Congress or the matter is finally decided by the courts.

    But when DOMA finally goes away, it's not clear how the feds will respond to the situation you describe.

  • 78. Straight Ally #3008  |  February 23, 2011 at 3:41 am

    I'm so glad they're on our side. :D

  • 79. Straight Ally #3008  |  February 23, 2011 at 3:42 am

    Brain, Maggie, Tony, Bryan, etc.: OH NOEZ! SEND MORE MONEY!!!

  • 80. Tasty Salamanders  |  February 23, 2011 at 3:42 am

    It's mentioned in the article that Congress can defend it so it isn't final yet.

  • 81. Shrpblnd  |  February 23, 2011 at 3:42 am

    Yes, they are. Chief Justice Rose Elizabeth Bird was removed from the CA Supreme Court by the voters in November 1986, primarily due to her perceived liberal rulings, especially related to death penalty cases, which she opposed.

  • 82. Hanou  |  February 23, 2011 at 3:43 am

    Excellent. Thanks for these Kathleen. Good to see O&B on top of things. I also love that they are willing to sacrifice a week of their own response time to expedite the schedule, and sort of point it out by mentioning that the proponents will suffer no harm.

    I don't think they'll get the stay vacated, unless the CASC declines the motion to expedite (and possibly even then).

  • 83. Rick  |  February 23, 2011 at 3:43 am

    To (almost) quote Joe Biden, This is a big (you-know-what) deal! Long overdue, but most welcome.

  • 84. Straight Ally #3008  |  February 23, 2011 at 3:44 am

    If everyone kept their personal views and application of the law separate on this matter, we'd never have been in this mess to begin with!

  • 85. Lesbians Love Boies  |  February 23, 2011 at 3:46 am

    Twitter DOMA is exploding!

  • 86. Lesbians Love Boies  |  February 23, 2011 at 3:47 am

    I am right there with you Debbie!

  • 87. Fluffyskunk  |  February 23, 2011 at 3:49 am

    It was declared unconstitutional. Jesus Christ.

  • 88. Bob  |  February 23, 2011 at 3:50 am

    this is a very welcome breakthrough, in a very long battle,,,, Obama, has been doing his homework,, DOMA unconstituional,,,,, hightened scrutiny,,, sexual orientation immutable,,, he has beeen evolving,, I love his mention that it's plain wrong for this class of people to be subject to discrimiation on moral or religious grounds,,,, take that NOM….

    He also sites different scientific studies and new understanding of sexual orientation over the past fifteen yrs..

    I recall Sagesse link to an article about a pardigm shift,, I do believe this is eveidence of that,,,,

    Obama suggested two options, repeal of DOMA through congress,,,,,, or via judicial action,,,, I think same as DADT we use both,,,,, working one against the other,,, and push for the end of DOMA

    woot wooot wooot to all of you for continuing the fight,,, this ought to give us all some much needed encouragement to push forward full steam ahead,,,,

    a side note, on Oprah yesterday she had a young couple who had a daughter age seven,, who was born a boy,, and they poceeded with the decision to proceed with transition surgery,,, AT AGE SEVEN lucky little girl,,, she has reaped the benefits of this shift in thinking,,,, the parents said they go to support group of twenty people,,, and there,,,,,, Oprah made the point, that this is the shift she's witnessed in her 25 yrs of doing talk shows,,,, this wouldn't have happend 25 yrs ago….. at times we dont' see the progess,,, but when I saw that litttle girl and her parents,,,, I was so happy for her,,,,, imagine making the transition early enough to have a childhood,,,,,,, JOY

  • 89. Straight Ally #3008  |  February 23, 2011 at 3:54 am

    Richard,

    I wonder, though, is McCain really interested in another battle after his spectacular loss with DADT? And Burr, too, given he actually acquiesced and voted for DADT repeal in the end (still amazed at that one)? Mr. Confirmed Bachelor Lindsay Graham might not want to protest to much, either.

    My top pick would be for Sen. Jim DeMint, who publicly stated his opposition to gay schoolteachers, a stance Ronald Reagan himself opposed. As for the House, there are plenty of religious right crazies to choose from, but because of his attack on DC's marriage laws, I'm going to nominate Jason Chaffetz of Utah.

  • 90. Kathleen  |  February 23, 2011 at 3:56 am

    Fluffyskuunk, in the cases they're referencing the 2nd Circuit, where they've decided not defend, there hasn't yet been a ruling.

  • 91. Hanou  |  February 23, 2011 at 3:56 am

    Oh wow:
    "The standards long established by every court in this country cannot mean what they say if a stay of the district court’s judgment is continued for one day longer in this case. Plaintiffs have a constitutional right to marry, and this Court’s stay pending appeal denies to them the right to spend their lives together in marriage. This Court’s January 4 order and the California Supreme Court’s response make clear that the stay can no longer be justified and the “additional delay” it imposes will not be fleeting. Given these changed circumstances, the stay pending appeal should be vacated."

    Or as I read it: "You screwed up, fix it."

  • 92. Richard A. Jernigan  |  February 23, 2011 at 3:57 am

    At least I know I am not alone WRT reading my screen through tears!

  • 93. bJason  |  February 23, 2011 at 3:58 am

    I wonder if they will now stop defending DADT in the LCR case.

  • 94. Balu  |  February 23, 2011 at 3:59 am

    Wow what an awesome day :) Two big news at once, thank you department of justice. Thank you Ted and Olsen.

    PS: I also happened to get a new job today with pay rise. May be I should buy a lottery

  • 95. Bob  |  February 23, 2011 at 4:01 am

    "as long as it remains the law" in other words until we succeeed at changing that law, either through courts or repeal,,,,,,, Obamas statement is a clear signal of renewed hope in achieving that end…. as for DADT so for DOMA

  • 96. Richard A. Jernigan  |  February 23, 2011 at 4:02 am

    And let us not forget about Ms. Bachmann. Funny how someone who shares the same name as a manufacturer of model railroads and the related accesories thinks she can determine what is right for me without even getting to know me first!

  • 97. Fluffyskunk  |  February 23, 2011 at 4:03 am

    …okay, apparently there hasn't been a ruling yet and I'm an idiot. Please disregard the above. :-P

  • 98. Richard A. Jernigan  |  February 23, 2011 at 4:04 am

    Maybe you should. I am even considering it myself!

  • 99. Straight Ally #3008  |  February 23, 2011 at 4:05 am

    Indeed! It will be calculated on whether or not she thinks it will help her Presidential run, of course. Maybe she'll check with Glenn Beck?

  • 100. Richard A. Jernigan  |  February 23, 2011 at 4:09 am

    Oh, please! Don't get me started on him! He is truly the poster child for American Fascism. Everything he says and does to harm others is disguised as patriotism by wrapping it in the flag and putting a Bible in his hand! What a maroon! (Thanks to my fellow Bugs Bunny fans for reminding me of that one!)

  • 101. Straight Ally #3008  |  February 23, 2011 at 4:10 am

    OT, good and bad, via NPR:

    Sen. John Thune (R-SD) says he won't run for President. Yay!

    Gov. Bob McDonnell (R-VA) says he would consider being Vice President. That should send chills down your spine.

  • 102. Richard A. Jernigan  |  February 23, 2011 at 4:12 am

    McDonnell as VP? When I saw that, I felt someone not only walking on my grave, but dancing and urinating on my grave! Here's hoping his aspirations lead nowhere!

  • 103. Maggie4NoH8  |  February 23, 2011 at 4:20 am

    A friend of mine is an ardent supporter of Obama (well, I am too, except have been disappointed in his "leadership" on GLBT issues), and he has long commented that he is a "cool kat"…

    At first I didn't buy that, but… After watching Obama over the last couple of years, it does seem that he:

    1) Puts out there the direction he wants to go
    2) Sits back and lets it all play out – in the meantime, some of the "players" lead (usually the democrats) and others "show their ass" (a southern-term that means you show your true colors – typically republicans)
    3) Steps back in and closes the deal from #1

    I am actually beginning to appreciate this approach – it shifts ownership of the process to the legislative branch of the government along WITH the petty crap too.

    I have to admit, he's stayed out of the petty mud-slinging, and has delivered on more things than any other administration in my generation! Pretty classy, effective and admirable if you ask me!

  • 104. Straight Ally #3008  |  February 23, 2011 at 4:26 am

    I have to give him the end of the lame duck session of Congress…that was a tour de force.

  • 105. Amy  |  February 23, 2011 at 4:26 am

    Still trying to figure this out, I am from Massachusetts, 2 cases defended by Obama and DOJ this past October. Will they now stand. Can I now get Federal benefits with my Massachusetts Marriage licence. I also have friend who have significant others who are not from the U.S. can they file the paperwork to sponsor them for citizenship with a Massachusetts marriage licence?

  • 106. Maggie4NoH8  |  February 23, 2011 at 4:31 am

    Me too…

  • 107. Leo  |  February 23, 2011 at 4:31 am

    But suppose the plaintiffs' Mar 1 brief asks the court to overturn its own Cook v Gates precedent. The gov still has a reply brief to write and oral arguments to attend. What might they do?

  • 108. Mark M - Seattle  |  February 23, 2011 at 4:32 am

    5 hrs :-)

  • 109. Alex  |  February 23, 2011 at 4:37 am

    This does not change the law at all. DOMA is still law, and is still being enforced from a legal perspective, but just now, if it's challenged in court, the justice department will pass on defending the constitutionality of it.

    So, this doesn't change at all what Massachusetts marriage licenses are or can do.

  • 110. Jeff  |  February 23, 2011 at 4:39 am

    I just called GLAD ( Gay and Lesbian Advocates and Defenders of New England) I am from Massachusetts as well. I am in a bi-national relationship as well. They said, no, I shouldn't apply for a marriage licence in Massachusetts, it would still jeopordize his visa status and potentially still get him exported if we enter into the legal status of marriage.

    So no, telll your friends not to get married if they are bi-national and from Massachusetts. This new Obama news doesn't change anything as of yet if you're from Massachusetts, the Massachusetts cases ruled on in October are technically still in the courts. The message essentially from GLAD is that this is "a good thing" for Massachusetts' Gill v. Office of Personell and Martha Coakley's Soverignty of Mass challenge, but as of yet, nothing has changed.

  • 111. Bob  |  February 23, 2011 at 4:41 am

    imagine what we could do, once we achieve human rights for all ,,, imagine all this energy being channeled into supporting the many other issues Obama is facing to set things right in America,,, imagine what could be achieved in another four years under Obama's care!!!!!!!!!!

    imagine the LGBT community using all the talents and strengths gained by fighting for equality,,, achieving it,,, and as equal citizens being able to harness that knowledge, energy, and ability,,, to support gov't in achieving success in very important goals,,, in ending poverty , hunger, improving education,, rebuilding infrastures,,, taking pride America,,,,,,, and showing it…….. IMAGINE

  • 112. Amy  |  February 23, 2011 at 4:41 am

    Thanks Alex, thanks Jeff

  • 113. David in ME  |  February 23, 2011 at 4:41 am

    Maybe Tam will want to defend it. Tam and Mags?

    Dave in Maine

  • 114. Richard A. Jernigan  |  February 23, 2011 at 4:41 am

    Thanks, Mark M. Hope all is going well for you and Robert in Seattle! We are working on the logistics for a weekend trip to Asheville for an LGBT Rights conference. Looking forward to it because Constance McMillan and Christine Sun will be two of the panelists, along with Daniel Fatou (I hope I spelled his name correctly). I think it will be a very enlightening and empowering presentation!

  • 115. Jeremy  |  February 23, 2011 at 4:49 am

    If the judge in the Windsor case were to throw out Sect. 3 of DOMA, and find that sexual orientation is a suspect class, would that invalidate New York State's statutory definition of marriage?

  • 116. icapricorn  |  February 23, 2011 at 4:49 am

    Say what you want about the obsessed Glenn Beck but he is not opposed to gay marriage. When asked last August if he agreed that same-sex marriage was a threat to the nation, he answered flatly "no." When prompted for a reason, he replied,"I believe that Thomas Jefferson said, 'If it neither breaks my leg or picks my pocket, what difference is it to me?' "

  • 117. Chris B  |  February 23, 2011 at 4:52 am

    Straight Dave: That's my thought on why state laws not recognizing other states' gay marriages might fail in the courts.

    For example, say Melissa and Susan marry in MA, they then move to a state where SS marriage is not recognized. Since, according to state law Susan is not married, she then marries Steve. Steve and Susan move to Iowa. Who is Susan married to? Melissa? Steve? Both? Is she prosecuted for bigamy?

    It gets even more complicated if the Federal Gov't recognizes their marriage. What if a Canadian gay couple marries. They then move to MA. (Don't they file paperwork with the State Dep't (Federal Gov't) stating they are married? They don't necessarily have to prove to the state they are married, since their Federal forms say they are married, right?). In Mass. they are viewed as a married couple. By the US Gov't they are viewed as a married couple. But what happens when they move to South Carolina? The US Gov't says they are married, but the state doesn't.

    Sounds like a complete mess.

    In some states, first cousins can marry. But if they marry and move to a state where first cousins aren't allowed to marry, is their marriage still valid? I would imagine that it wouldn't come up, because, unlike same-sex couples, you can't tell by looking at them if their relationship should be legal or not (that is, you can't tell people are cousins by looking at them, but you can tell if a married couple is the same sex or not.)

    I wonder if this, and not the Prop 8 trial, is what eventually brings down all those anti-marriage-equality laws. SCOTUS may rule for a state's right to define marriage prerequisites as they wish, but eventually I think they would (should) have to see that marriages performed in one state have to be recognized in another.

    IANAL, BTW. Just speculation.

  • 118. Colleen  |  February 23, 2011 at 4:56 am

    Lovely comment, Bob!

  • 119. Kathleen  |  February 23, 2011 at 4:56 am

    First, you're obviously not an idiot. :) And it IS very confusing keeping track of all this. I spend a lot of time focused on just these cases and KNOW how hard it is to keep track!

    You're correct that DOMA, sect 3, has been declared unconstitutional. But so far, in cases that impact only Massachusetts and are being appealed in the 1st Circuit. These are among the cases the memo notes as "other pending DOMA litigation."

    The cases that the administration is saying it won't defend are the newly filed cases in district courts in Connecticut and New York. The government hasn't yet filed its responses to the complaints in those case.

  • 120. Eric  |  February 23, 2011 at 4:56 am

    FOX News phones up NOM's Maggie Gallagher to ask her what she thinks of the Attorney General's announcement that Obama has asked it to stop defending DOMA in court.

    Gallagher says it's an end run around the Constitution and says Obama has "unilaterally declared that gay is like Black."

    LMAOOOO

  • 121. bJason  |  February 23, 2011 at 4:59 am

    OK, someone help me. We have:
    Gill v. OPM, Mass. v. USA, Pederson v. OPM…
    isn't there a 4th one? One that coincides (for lack of a better way to put it) with Pederson? I can't think of it. Or am I confused?

    I am e-mailing a friend about this stunningly awesome news and want to get it right.

    Thanks!

  • 122. Lesbians Love Boies  |  February 23, 2011 at 5:00 am

    Oopsies – she is gonna get hit hard by the media for that statement. She really should think twice about opening her mouth.

  • 123. paula  |  February 23, 2011 at 5:02 am

    i don't know the ins and outs, but holder's statement says:

    "I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation."

    so not only do they apparently have the right, but the administration will help ensure that they are able to do so fully :-/

  • 124. RockyMissouri  |  February 23, 2011 at 5:05 am

    This is beautiful….I want to convey my joy and good wishes to everybody!
    Celebrate! Enjoy your moment…!

  • 125. Gregory in Salt Lake  |  February 23, 2011 at 5:07 am

    : * )

  • 126. Andrew_SEA  |  February 23, 2011 at 5:07 am

    You know – phillykarl, I think it would be downright neighborly to send Maggie, Brian, Louis, and all of their friends a wedding invite.

    Maybe even conduct a bus tour like they did and get married all over the state. :-)

    Nothing brings a family together than a wedding with an atmosphere of love and celebration.

    Heck – we all should send them wedding invites from around the country.

    p.s. Don't forget to include Tony at Family Research and our friends at Focus on the Family. Let them know where your gift registry is so they can provide a gift for the happy couple.

  • 127. Kathleen  |  February 23, 2011 at 5:10 am

    It's unclear to me how the gov intends to proceed in the 1st Circuit. In that Circuit, laws discriminating based on sexual orientation are only subjected to rational review and the statement above says the gov't believes DOMA is still defensible under that standard. I'll be interested in seeing what the gov filed in those cases.

  • 128. Gregory in Salt Lake  |  February 23, 2011 at 5:10 am

    I am right with you phillykarl! Hoping something now happens FAST to make it possible for us those in International relationships to live at peace! We could rent our own Bus with pictures of real families plastered all over it track nombies : )

  • 129. Ronnie  |  February 23, 2011 at 5:11 am

    She is dumber then a crooked line drawn using a ruler…..just saying….. (facepalms) ….. <3…Ronnie

  • 130. RockyMissouri  |  February 23, 2011 at 5:13 am

    I'm enjoying this victory for my dear friend, Gene Sims, who cannot..
    But his spirit is alive….! Because of him..I am a better person…a tolerant person….

  • 131. Gregory in Salt Lake  |  February 23, 2011 at 5:14 am

    thank you for details and for being candid about your situation!

  • 132. Gregory in Salt Lake  |  February 23, 2011 at 5:15 am

    we can hope!

  • 133. Andrew_SEA  |  February 23, 2011 at 5:16 am

    /has a vision of Brian Brown getting up this morning… kissing his wife… patting his kiddies on the head before school…. turns on the TV and then…

    B>O>O>M!

    … the news hits.

    First words out of his mouth:

    "Good God man!"

  • 134. Richard A. Jernigan  |  February 23, 2011 at 5:16 am

    Probably so that the bigots and other self-righteous tuchuses can prove to the world just how ridiculous they are!

  • 135. Troubletown  |  February 23, 2011 at 5:17 am

    ACTION NEEDED

    President Obama has instructed the Justice Department to cease defending the so-called "Defense of Marriage Act" in federal court.

    Please contact the White House to pledge your support to this change in policy.
    White House comment line: 202-456-1111
    Web-based form: http://www.whitehouse.gov/contact
    Email: president@whitehouse.gov

    Please contact your Senators and Congressmen as well as Republican House Speaker, John Boehner, to urge them NOT to independently defend this policy in federal court

    Contact House Speaker John Boehner
    Telephone: 202-225-0600
    Web-based form: http://www.speaker.gov/Contact
    Email : SpeakerBoehner@mail.house.gov

  • 136. Richard A. Jernigan  |  February 23, 2011 at 5:19 am

    Exactly. Especially since I have two different gift registries for my businesses. One for home care and personal care items, and one for Scentsy. Would love to have fellow P8TT'ers register their wish lists with me. Let us not forget about three words to improve the economy–Gay Bridal Registries!

  • 137. Kathleen  |  February 23, 2011 at 5:20 am

    The New York case is Windsor v. USA. There's also Dragovich v. U.S. Dept of the Treasury. Seems to me there's also on the 9th Circuit involving benefits for a court employee's spouse.

    See note ii from the DoJ's announcement for some others that could be affected by this.

  • 138. Bob  |  February 23, 2011 at 5:22 am

    thanks Rocky,,,, for your good wishes and thank you to Gene Sims,,, the victory is his for shaping your tolerance,,, that is a highly valued characteristic,,, one all of humanity is dependant upon,,,,, thank you

  • 139. Jeremy  |  February 23, 2011 at 5:23 am

    Gill v. OPM
    Pedersen v. OPM
    Windsor v. USA
    Golinski v. OPM
    Bishop v. USA
    Dragovich v. US Department of Treasury
    MA v. HHS

  • 140. Jeremy  |  February 23, 2011 at 5:24 am

    Golinksi is the one you are thinking about

  • 141. Lesbians Love Boies  |  February 23, 2011 at 5:25 am

    Will definitely contact the white house showing my support.

    Unfortunately, Gabrielle Giffords is my congresswoman (get well soon Gabby) and McCain and Kyl are my senators….but I will contact all three's offices.

  • 142. jen-bunny  |  February 23, 2011 at 5:27 am

    I can see John McCain now…he's gonna blow a fuse in his brain…..mumbling and grumbling to himself…."fsdfsdfreg…gays are taking over….sdfsdjfr…must…..stop….them….." This is gonna be comedy.

  • 143. Bob  |  February 23, 2011 at 5:28 am

    Troubletown,,,,, great post,,,,, let's get on it,, pledge support, loudly so Obama hears it,,, and the every Senator remembers this day,,,, shower them with love and kindness like they've never seen before,,,, thanks for the contact numbers,,,,, lets use em…….

  • 144. bJason  |  February 23, 2011 at 5:36 am

    Thanks, everyone! Windsor v. USA is the one I was missing.
    In addition to Jeremy's awesome list, I think Collins v. Brewer could be added. Correct me if I am wrong.

  • 145. Richard A. Jernigan  |  February 23, 2011 at 5:38 am

    Golinski is the California case if I remember correctly. Golinski works for a federal judge.

  • 146. bJason  |  February 23, 2011 at 5:39 am

    Beautiful sentiment, RockyM. I also claim this in the name of David Kimble (http://www.feedequality.org/feed-equality/recent-news/110-rest-in-peace) for the same reasons!

  • 147. Richard A. Jernigan  |  February 23, 2011 at 5:39 am

    All the reports about Gabby seem to be positive. She is definitely a fighter, and another example (at least in my honest opinion) of why women should NEVER be referred to as the weaker sex!

  • 148. bJason  |  February 23, 2011 at 5:41 am

    Great call, Troubletown! I'm on it!

  • 149. Lesbians Love Boies  |  February 23, 2011 at 5:42 am

    Se. Feinstein will introduce legislation to repeal doma

    Senator Dianne Feinstein: I'll Introduce Legislation to Repeal DOMA

    Feinstein Senator Dianne Feinstein (D-CA) has issued a statement following news that the Justice Dept. will no longer defend Section 3 of DOMA in court:

    "As a Member of the Judiciary Committee, it is my intention to introduce legislation that will once and for all repeal the Defense of Marriage Act. My own belief is that when two people love each other and enter the contract of marriage, the Federal government should honor that. I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now; and it should be repealed."

    Read more: http://www.towleroad.com/2011/02/senator-dianne-f

    http://www.towleroad.com/2011/02/senator-dianne-f

  • 150. Straight Ally #3008  |  February 23, 2011 at 5:43 am

    If memory serves, isn't this a change of heart of Beck's part? Not that I'm complaining when things like that happen – heck, I did a double take when Pat Toomey said he supported DADT repeal….

  • 151. Lesbians Love Boies  |  February 23, 2011 at 5:44 am

    You can also use Courage Campaigns predefined letter to send to President Obama:
    http://www.couragecampaign.org/page/s/ObamaSpeakO

  • 152. Lesbians Love Boies  |  February 23, 2011 at 5:45 am

    Yes, and Mark is going to outer space. I do hope she gets to be there when he lifts off.

  • 153. Richard A. Jernigan  |  February 23, 2011 at 5:47 am

    Okay, who has Feinstein's contact information, so we can start emailing, calling and writing to show our support? Of course, I expected no less out of a woman who knew and respected Harvey MILK!

  • 154. Ronnie  |  February 23, 2011 at 5:49 am

    Leaping Lizards!!!!!!!!!!…… I just fell off my chair…..<3…ronnie

  • 155. Kathleen  |  February 23, 2011 at 5:50 am

    Thanks Jeremy.

  • 156. Kathleen  |  February 23, 2011 at 5:51 am

    I don't think Collins involves DOMA and I don't think the DoJ is involved – it's a suit against the state of Arizona challenging an Arizona law.

  • 157. Kathleen  |  February 23, 2011 at 5:52 am

    I should add – that's just off the top of my head. I haven't looked it up to be sure that's correct.

  • 158. Richard A. Jernigan  |  February 23, 2011 at 5:56 am

    So do I.

  • 159. Bob  |  February 23, 2011 at 5:56 am

    YES for Feinstein,,, introduce the bill to repeal DOMA,,,, the stage is set,,, begin the push,,,, repeat previous actions,, relentlessly same as DADT,,,, call, write, pressure,,, for repeal of DOMA ACT NOW……

  • 160. Richard A. Jernigan  |  February 23, 2011 at 5:58 am

    Why, Ronnie? Feinstein has been on record as being opposed to both DADT and DOMA since day one! Of course, like I said earlier, she was on the San Francisco Board of Supervisors with Harvey, so it really does not surprise me that she would do this! You Go, Dianne Feinstein!

  • 161. Gregory in Salt Lake  |  February 23, 2011 at 5:59 am

    ok….been holding back the tears…that did it! spring is in the air! it is happening!

  • 162. AnonyGrl  |  February 23, 2011 at 6:06 am

    Oh no! YOU are Mr. Time Zone! If you don't know, we are all doomed!

    P.S. Don't forget it is Wednesday… board mtng. tonight. :)

  • 163. Ronnie  |  February 23, 2011 at 6:06 am

    Oh I know…It wasn't that, that made me fall off my chair….it was that when I opened the email & saw "I’ll Introduce Legislation to Repeal DOMA"….I was already on the edge of my seat opening emails about O & B, the DOMA news & then that…I slid right off…no joke…lol….<3…Ronnie

  • 164. Gregory in Salt Lake  |  February 23, 2011 at 6:11 am

    : D ! hope you didn't hurt yourself!

    btw, looking forward later this evening to discuss all these new developments with hubby…and watch Drag Race on Logo.com… "Wednesday's are a drag" @ our house : )

  • 165. Gregory in Salt Lake  |  February 23, 2011 at 6:13 am

    referring to Feinstein sponsoring the bill…

  • 166. Gregory in Salt Lake  |  February 23, 2011 at 6:13 am

    great idea!

  • 167. Richard A. Jernigan  |  February 23, 2011 at 6:15 am

    Yes, I remember. Hawaii is always the one that throws me, because I keep thinking that they are in the same time zone as California, so I always tune in too early on Hawaii events!
    And isn't Dianne Feinstein's latest move in Harvey's memory just awesome!

  • 168. Richard A. Jernigan  |  February 23, 2011 at 6:16 am

    I hope your chair is over top of a rug, so that the landing is easier! And that Woody was not underneath you when you fell!

  • 169. Richard A. Jernigan  |  February 23, 2011 at 6:17 am

    Could this mean another chance to bring UAFA and ENDA back to the table? I hope so!

  • 170. Santa Barbara Mom  |  February 23, 2011 at 6:17 am

    This is incredible…..it all reminds me of the Berlin Wall coming down! My adrenalin is flowing so fast, I can't slow down to read the comments. Thank you for something positive in my otherwise dismal day (my elderly mother has been diagnosed with pneumonia, and my brother and I have had to make "the big decision" regarding treatment. Now I have "happy tears" and "sad tears".

  • 171. Richard A. Jernigan  |  February 23, 2011 at 6:20 am

    You also have our prayers here in Hope Mills.

  • 172. AnonyGrl  |  February 23, 2011 at 6:36 am

    So sorry to hear about your mother… I hope that she recovers quickly… and big hugs for you and your family as you work through these tough decisions.

  • 173. Jenny  |  February 23, 2011 at 6:39 am

    My jaw literally dropped when I read this. What fantastic news!!

  • 174. Kathleen  |  February 23, 2011 at 6:40 am

    Very sorry to hear about your mother. I know how difficult these decisions are, having been there with my own mother many years ago. ((hugs))

  • 175. Bob  |  February 23, 2011 at 6:48 am

    Santa Barbara Mom,,, thinking of you at this time, sending love,,, the big decision is hard,,, wondering what you chose, and sending prayers for peace love Bob

  • 176. Gelz209  |  February 23, 2011 at 6:49 am

    Senator Diane Feinstein (D-CA) has issued statement that she will introduce legislation that will once and for all repeal DOMA.
    http://ow.ly/42apu

  • 177. StevenJ  |  February 23, 2011 at 6:58 am

    I want to copy this entire thread and paste it as my Facebook status. Then I want to send it to the Indiana House of Representatives, including the Repug that voted to expand discrimination against gays & lesbians.

  • 178. Lesbians Love Boies  |  February 23, 2011 at 7:00 am

    If there were a like button, I would 'like' your comment!

  • 179. Bill  |  February 23, 2011 at 7:02 am

    One of the more interesting comments I've read is now that the DOJ will no longer 'half-heartedly' enforce DOMA, that now leaves the way open for the more conservative groups to fully go on the legal offensive to defend DOMA.

    But, in all these discussions, is Judge Walker's Prop 8 decision the only one that actually has any facts. Despite the possibly poor defense given by Pugno et al., are there really any new arguments that could be made that would stand up to cross examination on the facts of the case.

    Most of the legal decisions cited seem to involve legal doctrines and do not establish the burden of proof necessary. Is Judge Walker's prop 8 decision the only one that does?

  • 180. Casey  |  February 23, 2011 at 7:03 am

    I hope no one would pick McDonnell as a running mate. I live in Richmond and have to look at his mug every night on the news – he's really divisive and doesn't give a shit who he hurts – reminds me a lot of Cheney. I'm really hoping we can get some more victories like this during the current administration, get Obama to continue standing up more and doing the right thing, and stir up some of that good ol' Obamania we had in '08 to defeat whichever looney toon the GOP sends down the chute in '12.

  • 181. Richard A. Jernigan  |  February 23, 2011 at 7:08 am

    Casey, we have friends in Richmond. Next time we are headed that way, what do you say to meeting at Rostov's for some coffee?

  • 182. Kathleen  |  February 23, 2011 at 7:33 am

    First, just so we're clear – Walker's decision in Perry doesn't implicate DOMA directly. It's possible to strike down Prop 8 with DOMA in place.

    But to your point about the difference between Perry and the DOMA cases – As far as I know, none of the DOMA cases have involved testimony. However, there are still facts presented in the case and there is a standard of proof (though I'm not sure if what you mean by standard of proof is the same as my understanding of it).

    The only thing missing from the DOMA cases that existed in Perry is actual testimony in court. In the DOMA cases so far, neither the lawyers handling the cases nor the judges have felt that was necessary in order to come to a decision.

    To get a feel for what facts are involved in these cases and the kind of evidence that is presented to support them, see two of the documents submitted by Plaintiffs in the case of Gill v. OPM available at this link. See "Statement of Undisputed Facts, November 17, 2009" and "Statement of Non-Adjudicative Facts, November 17, 2009" in the right sidebar: http://www.glad.org/work/cases/gill-v-office-of-p

  • 183. Dave in CA  |  February 23, 2011 at 7:52 am

    For those who say the President has a "duty" to defend any and all laws – two points for them to think about:

    1) Where exactly is it spelled out in the Constitution that the Executive Branch must defend each and every law? Ask critics to locate the specific Article, Section and Clause. Point out, too, that "defending" a law in court is a vastly different matter from "enforcing" a law.

    2) And point out that Obama is merely following a well established precedent of previous executive branches choosing whether to defend a law in court. Here are some examples from the last four administrations:

    a) George W. Bush (2005): in ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified
    Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”

    b) Bill Clinton (1999): in Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section
    3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s
    Miranda cases.”

    c) George HW Bush (1990): in Metro Broadcasting v. Federal Communications Commission – "The Bush administration chose not to defend the law that allowed that minority applicants for broadcast licenses were given preference if all other relevant factors were roughly equal."

    d) Ronald Reagan (1983): in INS v./ Chadha – “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and instead of defending the law, the INS joined Chadha in arguing that § 244(c)(2) is unconstitutional.”

    Keep these in your hip pocket.

  • 184. Santa Barbara Mom  |  February 23, 2011 at 7:57 am

    We have chosen to call Hospice in. My Mother has no quality of life, having progressively gone downhill over the past five years after a stroke. She is now confined to a wheelchair and basically just keeps saying she wants to go home (lives in assisted living)……doesn't recognize anyone in the family but me. She's unhappy and would never want to be this way. I wish she could have passed two weeks ago when we spent the day in the ER, but having the decision not to treat on my shoulders. Well, it's just hard to take. She just turned 88……….adopted me when I was three days old.

  • 185. John  |  February 23, 2011 at 8:01 am

    Not only would the first cousin marriage issue not come up, but states are required to grant full faith *except* for same-sex marriage. That's what is particularly striking about DOMA.

  • 186. John  |  February 23, 2011 at 8:03 am

    Me too. Watching our side vs. the other side, it's pretty darn clear where the legal minds are. Of course it helps that they have the truth on their side.

  • 187. John  |  February 23, 2011 at 8:06 am

    I personally like Blankenhorn. His testimony is always great to read. So I hope he gets to do it, just for the comedic value.

  • 188. Kathleen  |  February 23, 2011 at 8:09 am

    Thanks David.

  • 189. Tim in Sonoma  |  February 23, 2011 at 8:10 am

    Wow This is FANTASTIC!!
    We here in the US are also experiencing liberation as well as some Middle East countries.
    2011 is turning out to be a good year for the people!
    Scribing with joy!
    Congrats everyone!!!

  • 190. Sheryl Carver  |  February 23, 2011 at 8:31 am

    Sending love & wishes that all may go as well as possible under the circumstances. Even knowing it's the right decision doesn't make it easier or less painful. I am so very sorry.

  • 191. Dave in ME  |  February 23, 2011 at 8:36 am

    Oh, yeah. I remember those times. I had forgotten all about that-I was still kind of young and didn't really understand it all. But I remember the idea that being a liberal was really really bad.

  • 192. Kathleen  |  February 23, 2011 at 8:47 am

    Cruz Reynoso, one of the other justices voted out with Chief Justice Bird, delivered the welcoming speech to my law school class at UCLA. His story is really inspiring. The son of migratory farm workers (he even worked in the fields as a child), he was appointed to the California Supreme Court in 1982. http://en.wikipedia.org/wiki/Cruz_Reynoso

  • 193. Bill  |  February 23, 2011 at 8:58 am

    thanks for the response. I guess my point was about establishing the facts for determining the high standard for discrimination that is referenced in the DOJ press release.

    I guess my point was that the prop 8 case was the only one which establishes, vis testimony, the immutability of being gay, the existence of discrimination, the lack of power in politics.

    I guess I wondered whether those, such as NOM, who want to prove DOMA will have to use factual testimony, subject to cross examination, as the basis for the standard they will argue for.

    Prop 8 doesn't depend upon DOMA although Walker in his decision does reference the various standards for judicial scrutiny, but decides the case does not depend upon any of them.

    Ultimately, I wondered if DOMA supporters will take the stand or just let us have a lot of hot air not subject to cross.

  • 194. Kathleen  |  February 23, 2011 at 9:11 am

    Whomever steps forward to defend these cases in New York and Connecticut will have to state what they believe to be the appropriate level of scrutiny. So this question of immutability, etc., will come up in that discussion. We have yet to see if the judges in the district courts will decide a trial with testimony is needed to decide the cases, or if the issues can be adjudicated without it.

  • 195. Bob  |  February 23, 2011 at 9:13 am

    Santa Barbara Mom,,,,, thanks much for sharing,,, this opened the tear ducts for me,,,,, Hospice is such a peaceful choice,,,, it doesn't change the sadness of losing a loved one, but it does bring comfort in knowing your attempts at easing her passing in comfort, I made the similar choice for my Aunt,,,, and that's why I wondered,,,, it is such a blessed priviledge to make this decision for a loved one,,,, especially knowing it's what they want….

    I have made the same choice for myself,,, stopping treatments,,,,, and waiting for what comes next,,,,,

    Truly my prayers are with you and the goal is always PEACE , that your mother may find that state of peace, and that you also feel peace in having made the decision,,,

    The burden of choice now lifted , may the courage of acceptance bring PEACE beyond understanding,,,, Godspeed,,,,,

    Your mother chose right when she adopted you, and you have returned that gift in making the right choice for her,,,

    truly truly thanks for sharing may we all be strengthend by the knowledge and awareness of choices available to us, and the courage to talk about them…

  • 196. JonT  |  February 23, 2011 at 9:19 am

    Big happy face :)

  • 197. Kathleen  |  February 23, 2011 at 9:20 am

    https://www.youtube.com/watch?feature=player_embe

  • 198. Kathleen  |  February 23, 2011 at 9:22 am

    embed fail. It's Dan Choi, Molly McKay, Mel Nathan, John Lewis and others w/ statement on today's DOMA news.

  • 199. JonT  |  February 23, 2011 at 9:35 am

    'Wonder what Brian and Maggie will do with their next careers of hate.'

    Well, I don't think they will ever stop trying to oppress teh gheys.

    But, in the off chance they do, I understand Islam is the next great threat to Christianist Supremacy the American way of life.

  • 200. Ann S.  |  February 23, 2011 at 9:36 am

    Wow, I don't have time yet to read all the comments or the full statement, but — wow. I didn't expect this.

  • 201. Sagesse  |  February 23, 2011 at 9:36 am

    Oh my, oh my, oh my!

  • 202. JonT  |  February 23, 2011 at 9:37 am

    I agree! The screeching from the right was delicious. :)

  • 203. Bob  |  February 23, 2011 at 9:39 am

    great video Kathleen,, because we cannot go and clean other houses until we clean our own,,,,,,,, love that comment,,, it needs to be drilled home,,,,, over and over,,,, human rights NOW

  • 204. Chris in Lathrop  |  February 23, 2011 at 9:47 am

    Late to the party…again… but, WOOHOO!!! I'm sure hoping this fixes things for Franck and everybody else in a similar situation!

    Been busy lately, but I still read the articles. I miss you guys!

  • 205. Elizabeth Oakes  |  February 23, 2011 at 9:49 am

    I learn so much about the crazy underground network of laws and regulations from this site! Who knew Congress could step in to defend something? I wonder how this parallels the thinking on the standing issue here in California…..

  • 206. Owen  |  February 23, 2011 at 9:51 am

    Awesome news! This makes my WEEK.

    I'm curious about something, though (probably something that's been answered here but I've never come across):

    Could striking down section 3 pave way for Federal recognition of civil unions, in addition to marriages, or will this only allow for benefits for same-sex *marriages* specifically?

  • 207. Straight Dave  |  February 23, 2011 at 9:56 am

    The legal standing of Congress to challenge an action in federal court is a bit muddy, but a few items stand out in this article. http://caselaw.lp.findlaw.com/data/constitution/a

    1. It seems clear that a legislator ''receives no special consideration in the standing inquiry,'' and that he, along with every other person attempting to invoke the aid of a federal court, must show ''injury in fact'' as a predicate to standing. What that injury in fact may consist of, however, is the basis of the controversy.

    2. The status of this issue thus remains in confusion.

    The standing examples given from past cases all include an element of executive branch misbehavior of some sort, wherein Congress had been improperly deprived of their power, as opposed to simply being legitimately vetoed or politically out-manoeuvered. Here's the examples:
    "the court found the President's actions to be beyond his constitutional authority"

    "the alleged improper use of a pocket veto to prevent a bill from becoming law"

    "a diminution in congressional influence resulting from executive action that nullifies a specific congressional vote" (presumably meaning some action apart from a normal veto, but simply ignoring the congressional vote)

    Some rough edges here, of course, but it appears to me that simply complaining that your pet law got shot down as unconstitutional is not sufficient to give independent standing. Being granted intervenor status is much more likely. But that may come at a political cost.

  • 208. JonT  |  February 23, 2011 at 9:57 am

    I'm sorry to hear that SBM. Sending good thoughts your way.

  • 209. Ronnie  |  February 23, 2011 at 9:58 am

    YAY…thanks for the vid. Kathleen….& now for a slogan that has been my daily mantra since the 1st time I heard Lt. Dan Choi shout it out….

    "I am somebody…and I deserve full EQUALITY..right here…right NOW!!!!!!!!"

    <3…Ronnie

  • 210. JonT  |  February 23, 2011 at 10:03 am

    Via JMG, here's a poll to freep:

    Do you support the Defense of Marriage Act?
    http://www.boston.com/news/polls/022311_Defense_o

    Vote! :)

  • 211. Richard A. Jernigan  |  February 23, 2011 at 10:03 am

    I think that is the real reason Andy Pugno was running for office in California. that way, since he was listed as one of the D-I's, if he were elected, they would have standing.

  • 212. Ronnie  |  February 23, 2011 at 10:08 am

    : ( ……I can't see my life without my mom in it….I'm happy about all that is going on in terms of equality but I'm sad for what you are going through, SBM…….A song for SBM is what is needed…..<3…Ronnie:
    http://www.youtube.com/watch?v=VsNbhwSXDB8

  • 213. Kathlene  |  February 23, 2011 at 10:34 am

    Everyone's right, this will only backfire on them. Check this shit out: Focus on the Family Wants House Republicans to Investigate the Justice Department over DOMA Cases

  • 214. Kathlene  |  February 23, 2011 at 10:37 am

    Which is ultimately the key to our success.

  • 215. Kathlene  |  February 23, 2011 at 10:38 am

    I love them sfm.

  • 216. Kathlene  |  February 23, 2011 at 10:40 am

    So McDonnell is the male version of Sarah Palin, right?

  • 217. Kathlene  |  February 23, 2011 at 10:41 am

    L O FUCKING L

  • 218. Kathlene  |  February 23, 2011 at 10:45 am

    That Dubya ruling really surprised me.

  • 219. Mandi  |  February 23, 2011 at 10:51 am

    I'm waiting for the wail of 'he's not qualified to determine that' so that we can remind them all that while our president may not have been in the military, he IS a lawyer.

    and totally OT: Yay me! I got my computer replaced, and can reply to comments again; the very first thing (after personalizing, of course) was long on here and recieve fabulus news; and then finally got my first tatoo. I'm so very, very happy.
    )0( Mandi <3

  • 220. Tomato  |  February 23, 2011 at 11:15 am

    oh Maggie, Maggie…

    Would it even be possible to coach someone and PAY someone to say such things?

    It's a gift, a GIFT I tell ya!

  • 221. Tomato  |  February 23, 2011 at 11:21 am

    SBM – hugs for you. I know how hard this decision is, we had to make it for my Dad.

    I truly believe that we are given many deep values by the parents we love, and when we make decisions for them we make those decisions based on the values they taught us. We make the decision they would have made for themselves.

    Many hugs for you, SBM.

  • 222. Tomato  |  February 23, 2011 at 11:22 am

    It is a cascade of amazing developments!

    I can 't quite contain it all, or even grasp it all!

  • 223. Richard A. Jernigan  |  February 23, 2011 at 11:25 am

    Worse!

  • 224. Kathleen  |  February 23, 2011 at 11:29 am

    Thanks, Dave. I appreciate you finding that.

    It's not clear to me from today's statement whether the Obama administration would appeal an adverse decision. Does "represent[ing] the interests of the United States throughout the litigation" include appealing to the bitter end, or only refer to remaining a party to the cases in district court? I guess we'll have to wait and see.

  • 225. Santa Barbara Mom  |  February 23, 2011 at 11:40 am

    Thank you, thank all of you for being there for me(cyring). It's just so hard to know if I'm doing the right thing……..it's the battle of emotions vs intellect. I was just with my Mother and she read the entire label on her cough syrup and then called me by name and said she wanted to go home. I think this is harder than raising five children. It's pretty crazy…..I've shared more with you guys, I haven't told my children. Sure wish we all had Skype or something…….I'll probably never meet most of you. And yet, I honestly don't know what I'd do without this website. When Michael, my son, texted me about DOMA today, I knew I could get the facts in ways that I could understand from all of you. I hope you'll just bear with me during this process. Hugs and more hugs.

  • 226. Kathleen  |  February 23, 2011 at 11:43 am

    Congrats on all the above, Mandi!

  • 227. Richard A. Jernigan  |  February 23, 2011 at 11:45 am

    I have Skype, SBMom. I will email you from my work email with my Skype ID. I will also send you our numbers here. And at the rabbi's house, there is no such thing as too early or too late.

  • 228. Santa Barbara Mom  |  February 23, 2011 at 11:59 am

    You're so special. Yikes, I don't have Skype. Guess I need to find out more about it :o)

  • 229. Richard A. Jernigan  |  February 23, 2011 at 12:24 pm

    If you have a webcam, I can send you an invitation to set up Skype. It is free, and even if you don't have a webcam, you can still talk on it free. Especially if you have a computer with integrated speakers and microphone.

  • 230. Matthew  |  February 23, 2011 at 12:40 pm

    NOMs blog is exploding with all caps 'we must stop Obama' threads.

    Their words: "This is it. The whole ball game."

    So true! The part they left out…Game over. Love wins!

  • 231. Ronnie  |  February 23, 2011 at 12:58 pm

    " Why do we even have courts if the President himself gets to decide which laws are constitutional?" ~ Brainless Brian Brown Suit

    Oh, so now you want the courts?….BWAAAAAAA!!!!….what a maroon…. XP ….Ronnie

  • 232. Elizabeth Oakes  |  February 23, 2011 at 12:59 pm

    Yikes Richard…I didn't even think of that. Thankfully he was trounced–a rotten fish still stinks, even if you don't know why it's rotten.

  • 233. Richard A. Jernigan  |  February 23, 2011 at 1:17 pm

    Yes, it does. And it doesn't even take as long as it took for Lazarus in the grave!

  • 234. Rhie  |  February 23, 2011 at 1:49 pm

    Watching

  • 235. Carol  |  February 23, 2011 at 2:08 pm

    I think I agree with you, Michael, just as support for marriage equality has risen in California since the Perry trial a year ago. We saw that the best arguments the proponents could think of were just silly. Now we may see that on a national scale.

  • 236. Bennett  |  February 23, 2011 at 2:12 pm

    Is there no registry for the gents amoung us?

  • 237. Elizabeth Oakes  |  February 23, 2011 at 2:20 pm

    Well, if Issa's leading the charge, we'll surely get more supporters through what I now call the Maggie Effect (the more Maggie opens her mouth, the more people say, "Ugh! I don't want to be like that.") Issa's another one whose vitriol and meanness shines right through.

  • 238. Elizabeth Oakes  |  February 23, 2011 at 2:24 pm

    My feeling exactly, SA. Of course, how many people really understand that the reason they don't have to get married in all fifty states (or divorced, for that matter, or get new birth certificates every time they move) is because of the Full Faith and Credit Act.

    Someday…some blessed day….kids learning history will guffaw at the stupidity and obvious discrimination inherent in DOMA.

  • 239. Bennett  |  February 23, 2011 at 2:26 pm

    can someone break it down for me. Maggie says a lot of things, what about this is so dumb? dont get me wrong, I am sure it is,It just is not immediately clear to me what differentiates it from her ususal positions? Otherwise, I will have to wait for the marghareta to wear off.

  • 240. Elizabeth Oakes  |  February 23, 2011 at 2:28 pm

    Or maybe Imperial County's "Dolores"? Where's Dolores?

    Bummed I missed the deadline for Imperial County to file their appeal, btw. I would've liked to commemorate somehow, like by watching a couple episodes of Bozo the Clown.

  • 241. Tomato  |  February 23, 2011 at 2:32 pm

    That "three branches of government" thing just keeps tripping Brian up, doesn't it?

  • 242. Elizabeth Oakes  |  February 23, 2011 at 2:35 pm

    Gay Is The New Black? Someone declare a Design Emergency!!

  • 243. Richard A. Jernigan  |  February 23, 2011 at 2:47 pm

    Yes. My registries are equal opportunity. PM me on Facebook and I will help you get set up.

  • 244. Kathleen  |  February 23, 2011 at 3:04 pm

    I don't think the deadline has passed yet. If I'm reading the rules correctly, they have 90 days from entry of the order (Jan 4) to appeal the decision to the Supreme Court.

  • 245. Carpool Cookie  |  February 23, 2011 at 3:05 pm

    Is there a clip of this drama? I am ashamed to say I missed it.

    Sounds priceless.

  • 246. Bennett  |  February 23, 2011 at 3:15 pm

    I should be so lucky, my first last and only went home to mamma. I should have been a little bit wiser when it was made clear to me that I would never be introduced (seventh day adventist families are not exactly the same as those who attend the metropolitian community church afterall, but i generalize) but was assured that i was more important than a family that had "disowned" him. Drama queen. What is it with gay men and their mothers? (Baby come back! any old fool can see, we were wrong, and we . .. blah blah blah) Who can compete with that. I do wish him well. Maybe another time as far as the registry thing however, I was just playing with you about the bridal thing. I guess there is no groom equiv?

  • 247. Kathleen  |  February 23, 2011 at 3:26 pm

    If it's any consolation, Bennett, I have had my own problems with straight men and their mothers. :)

  • 248. Richard A. Jernigan  |  February 23, 2011 at 3:28 pm

    Actually, due to the nature of the products I sell, I normally refer to them as gift registries, because the products can be given as gifts for almost any occasion–housewarming, births, adoptions, marriage, going off to college, promotions, birthdays, anniversaries, or whatever.

  • 249. Bennett  |  February 23, 2011 at 3:33 pm

    No Maggie, he didn't say that. However, Obama would be in a better position to know if the discrimination against gay people were similar to the discrimination against black peope in much the same way as you migh be in a postion to know if the discrimination against gay people was similar to the discrimination against generally unattractive, frumpy, fat women. Stick to what you know Maggie. Ice creme, financially compromised journalism, and (evidently) premarital sex.

  • 250. Richard A. Jernigan  |  February 23, 2011 at 3:35 pm

    Don't hold back, Bennett. Let us hear what you really think! Good one!

  • 251. JonT  |  February 23, 2011 at 4:03 pm

    'Is there a clip of this drama?'

    I was referring to the reactions from the various hate groups here:
    http://joemygod.blogspot.com/2011/02/hate-groups-
    :)

  • 252. James Tuttle  |  February 23, 2011 at 5:31 pm

    lol

  • 253. Badger  |  February 23, 2011 at 6:01 pm

    I have only ever commented once before but had to come out of the weeds and say congratulations this is fantastic news. From a UK national, who lives in Hong Kong and is in Australia right now. So that's 3 countries I have rooting for you all.

  • 254. Straight Dave  |  February 23, 2011 at 9:29 pm

    DOJ's actions all depend on where they believe the "interests of the United States" lie. Those are not necessarily aligned with the personal of interests of some random congressmen. It's easy to make the case that they consider equality, fairness, and constitutionality to be in the country's best interests, since they are sworn to uphold the Constitution. Keeping the case alive long enough t get it to SCOTUS to enable a uniform judgment would also be in everyone's interest. Disagreement in the Circuit Courts can not be tenable for much longer.

  • 255. Ronnie  |  February 23, 2011 at 10:33 pm

    Watch: Rachel Maddow Interviews Obama Adviser Tobias Wolff About DOMA from a Very Loud Bar http://www.towleroad.com/2011/02/maddow.html

    <3…Ronnie:
    http://www.youtube.com/watch?feature=player_embed

  • 256. Ronnie  |  February 23, 2011 at 11:12 pm

    Watch: Activists Hold DOMA Rally in the Castro http://www.towleroad.com/2011/02/watch-activists-

    "They told us we shouldn't fight in the courts or out in the streets. That we seem immature or we don't know what we're doing. They were wrong then and they are wrong now and they will forever be wrong so long as we continue to fight and stand for Love and Justice….This is not today, anymore, just the corner of Market and Castro. This is the corner of LOVE and JUSTICE and where ever the corner of love and justice is, where ever those two things intersect that is where we make history. There is not stopping us now" ~ Lt. Dan Choi

    "Lots of us are already married. We're just really wonderful and DOMA will hopefully recognize it, you know all around the nation. But we need the next group of Love Warriors who have bet their beloved and have fallen in LOVE and want to get married. Let me tell you, I had reporters calling me, off the hook, looking for couples and if your interested come talk to me." ~ Molly McKay, Marriage Equality USA

    "Change takes place when we start changing hearts and minds. We have to continue that. Having those conversations. Talking to our friends, our families, our neighbors. Make sure that when you leave here today you think of who you need to talk too to and make sure that they know what's going on with DOMA and make sure that they're along with us. Tell everyone that you know, they've got to be a part of the movement for justice." ~ Andrea Shorter, Equality California
    "For the first time in our nation's history the President, THE PRESIDENT of the United States of American has said that discrimination against Lesbian, Gay, Bisexual, and Transgender people violates the United States Constitution. So today is a day that we will remember all our of lives because TRULY today we can say time is on our side & our time has come " ~ John Lewis, Marriage Equality USA

    The video stops at 2:40…goes black then towards the end part of what was in the YouTube link Kathleen posted yesterday is there but flipped….anywho…..EQUALITY NOW!!!!!!!…<3..Ronnie
    http://www.youtube.com/watch?feature=player_embed

  • 257. Gregory in Salt Lake  |  February 23, 2011 at 11:18 pm

    interesting website…appreciate the reference!

  • 258. Gregory in Salt Lake  |  February 24, 2011 at 12:25 am

    gay is the new black….
    http://loldarian.blogspot.com/2011/02/watch-nom-p

  • 259. Gregory in Salt Lake  |  February 24, 2011 at 12:40 am

    Love to you and your family SBM! Gregory

  • 260. Gregory in Salt Lake  |  February 24, 2011 at 12:47 am

    love the video! : D

  • 261. Lesbians Love Boies  |  February 24, 2011 at 1:01 am

    A+

  • 262. Gregory in Salt Lake  |  February 24, 2011 at 1:04 am

    !!!!!!

  • 263. Lesbians Love Boies  |  February 24, 2011 at 1:11 am

    This might help
    http://www.youtube.com/watch?v=FiA7sDn5cjY

  • 264. Gregory in Salt Lake  |  February 24, 2011 at 1:12 am

    loved this part:
    "for the first time in our history a president has said discrimination against LGBT persons…violates the united states constitution"

  • 265. Gregory in Salt Lake  |  February 24, 2011 at 2:07 am

    : D
    @ we never actually go backwards

  • 266. M S  |  February 24, 2011 at 2:09 am

    I could just cry, I'm so happy and grateful and full of heart-swelling PATRIOTISM! Thank you, Mr. President; thank you, AG Holder; thank you, Founding Fathers for this democracy and this Constitution! What I'd give right now to be able to high-five my dad who worked as an assistant US attorney for most of his life (Eric Holder was his boss), toasted us at our wedding nearly five years ago, and left this world too soon to see this day come.

    Does anyone know if there's a case pending in CA (9th circuit) that challenges DOMA Sec. 3?

  • 267. AnonyGrl  |  February 24, 2011 at 2:56 am

    Thanks for popping up and saying hello! Feel free to do so more often, we love hearing from lurkers!!!

    Have some cookies, and a glass of MILK!

  • 268. Kathleen  |  February 24, 2011 at 4:21 am

    I don't recall there being one that directly challenges it, but the 9th Circuit case of Golinski v. OPM now implicates DOMA.

    Initially, the suit was brought simply to enforce an order mandating health benefits for a 9th Circuit Court employee's same sex spouse. The chief judge for the 9th Circuit had determined that denying the benefits violated the court's employment non-discrimination policy. In making that determination, the court's internal review had decided that DOMA didn't preclude extending the benefits.

    However, the government decided to use DOMA as justification for denying the benefits and in so doing forced a confrontation on the constitutionality of DOMA itself.

    Lambda Legal's info on the case: http://www.lambdalegal.org/in-court/cases/golinsk

  • 269. New  |  February 24, 2011 at 4:34 am

    Maggie is at it again:
    Starts at 13:45

    [youtube http://www.youtube.com/watch?v=Ta–VNFMFhY&w=480&amp;…

  • 270. Richard A. Jernigan  |  February 24, 2011 at 8:10 am

    I just went to Molly's Facebook, and with the friend request sent her a PM stating that BZ and I will be more than happy to talk with the reporters she mentioned about the discriminatory nature of DOMA and its financial and logistical impact on us personally, beginning with going out of state to get married, which was a very rough deal logistically and financially!

  • 271. Richard A. Jernigan  |  February 24, 2011 at 8:35 am

    Golinski v. OPM

  • 272. Dave in ME  |  February 24, 2011 at 8:54 am

    I wish that people would remember that not all conservatives are against teh gay and not all democrats are for teh gay. The last thing we should do is condemn all Republicans simply for not being in the "correct" party.

    Dave in Maine

  • 273. M S  |  February 24, 2011 at 1:02 pm

    Thanks, Kathleen & Richard. Does DOJ's decision not to defend DOMA in certain cases affect Golinski v OPM? (i.e., Is Golinski one of those "certain cases"?) If I'm reading the AG's statements correctly, every jurisdiction has to be either a rational basis, heightened scrutiny, or TBD kinda place, so I'm curious to know which one the 9th circuit is.

    I'm also wondering if this decision by DOJ has or will have any bearing on the goofy TurboTax problems we've been having. The software won't let us e-file, apparently bc the Feds haven't officially determined how to treat legally-married-under-state-law same-sex couples in community property states like CA: 'Should half of her income count in my income?' Etc. According to TurboTax, the Feds are supposed to have an official answer/worksheet around mid-March, at which point the software ought be able to calculate everything correctly and cope with us e-filing. I noticed the second circuit stuff was also due around mid-March and wondered if there was any connection.

  • 274. M S  |  February 24, 2011 at 1:25 pm

    Oh– and Santa Barbara Mom, I'm so sorry to hear about your mom's decline and going to hospice. Much love and encouragement to you. Fwiw, speaking from the experience we had with my grandfather during his 5 year bout with dementia, you may never know if the decision you made was the right one. There doesn't seem to be a right time. It's either too early or too late, and you won't know which it is until after the fact– if that. The best you can do is consult with professionals and other trusted advisors, then leap.

  • 275. Kathleen  |  February 24, 2011 at 2:14 pm

    In the 9th Circuit, DADT dismissals had to be justified under heightened scrutiny, but this doesn't apply broadly to all cases involving laws that discriminate based on sexual orientation. If the 9th Circuit had precedent that said such laws have to be subjected to heightened scrutiny, this wouldn't be a matter of litigation in the Perry case.

    I suspect that the 9th Circuit has precedent that establishes rational review as the appropriate standard, but I'm not absolutely sure. (I'm kind of embarrassed that I don't know this – I feel like this is something I should!) I'll try to research it and get back to you with an answer.

  • 276. Kathleen  |  February 24, 2011 at 2:19 pm

    Didn't answer your Turbo Tax question. I don't think this has anything to do with the DOJ decision. DOMA is still in effect and will be until it's litigated out of existence or Congress repeals it and if either of event happens by mid-March, I might have to reconsider my lack of belief in miracles. I think it's just taking that long for the feds to come up with the necessary worksheets.

  • 277. Ed Cortes  |  February 25, 2011 at 5:13 am

    I do volunteer income tax preparation here in CA. One of our other volunteers has looked extensively into the issues in community property states. Apparently, the IRS has determined that in community property states, the state laws determine who owns the property/income, and the feds state how that property/income is to be taxed. I have a set of instructions for preparing such returns, as well as a copy of a letter from the IRS stating the ruling. If anyone wants a copy of these, send me an email to edc at nut-house dot net and I'll get them back to you. As far as I can tell, the ruling is for CA couples (RDP and Married), but could probably apply to other community-property states. I have also heard rumors that for tax year 2011, that we will be required to split everything for fed taxes, but don't count on that.

  • 278. Ed Cortes  |  February 25, 2011 at 5:15 am

    I forgot to add that there is a code on the IRS letter: PLR-149319-09 and if you google that code, there are a LOT of results.

  • 279. Felyx  |  February 25, 2011 at 9:17 am

    I have to speak up for the Republican house. They have done something I think will be beneficial to a degree. They have determined that every proposed bill should have a citation referring to its legality under the Constitution. (Now if only they would actually follow their own legislation!!!) If this had been a rule (that was actually followed) so many years ago, I feel certain that there would have been more scrutiny regarding DOMA. Also, I like the fact that they cut the House budget by 5%. This way they will have less funds in order to do less damage. While I am not so very thrilled with the move on cultural issues, I am pleased that Republicans are (so far) taking lots of time off from work. I am content to accept a thoroughly unproductive Congress who will be completely unable to advance any debilitated legislation what-so-ever.

    Best of all is the gilded silver lining with the current Republican Union Busting agenda. I really hope that this kind of activity will sustain a significant resurgence in the Liberal movement!!! I really look forward to a Democratic Supermajority with Obama as President. The last Congress was one of the most productive in history. I would like to see that repeated.

  • 280. Rhie  |  February 25, 2011 at 11:37 am

    Oh I don't think anyone here thinks that. When the GOP is referenced as being anti-gay that means the leadership and the party goals are anti-gay. And that the Democrat's is not. And that is just a fact.

    LGBT who identify with the party are either a) deluded into into thinking they can change it from the inside or b) don't realize that the GOP now isn't the same as the GOP even 20 years ago.

    Either way, fact is, that the GOP is committed to keeping LGBT second class citizens. They can leave and form a new GOP based on the stated principles of the GOP if they like but this party kicked them to the curb a long time ago.

  • 281. Dave in ME  |  February 25, 2011 at 11:48 am

    Speaking of Wisconsin, is anyone going to one of the rallies that are being held across the country tomorrow, Saturday 2/26/11?

  • 282. New  |  February 28, 2011 at 12:33 am

    http://www.youtube.com/watch?v=WMsA2MJage4

  • 283. Dave in Maine  |  February 28, 2011 at 12:39 am

    From this mornings Bangor Daily News: http://new.bangordailynews.com/2011/02/27/opinion

    "Under President George H.W. Bush, the Justice Department declared unconstitutional a law that essentially gave regulators preference to minority-owned broadcasting stations. And six years later, President Bill Clinton’s administration refused to defend a provision requiring the military to discharge most members of the armed services who were HIV-positive."

    FULL TEXT:

    Marriage for Everyone
    Posted Feb. 27, 2011, at 10:13 p.m.

    President Barack Obama and Attorney General Eric Holder took a courageous step in refusing to defend any longer the Defense of Marriage Act. But they did raise some questions.

    The misnamed law actually is a defense of only certain marriages, those between one man and one woman. It clearly discriminates against gay men and lesbians. Anyone who respects the Constitution should see that the law violates the Fourteenth Amendment that guarantees for everyone “the equal protection of the laws.”

    To a layman, a question that quickly comes to mind is whether a president can declare a law unconstitutional. The presidential oath of office makes no mention of acts of Congress.It says, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Another provision, however, says that the president “shall take care that the laws be faithfully executed.”

    That sounds, to the layman, completely restrictive. But several prominent experts in the law believe the Constitution gives a president some leeway. Take Justice Antonin Scalia, for example. In a concurring opinion in a 1991 case, Freitag v. Commissioner, he wrote that it was not enough for the Constitution to give the president the power to execute the laws and that “it was necessary to provide him with the means to resist legislative encroachment upon that power.” He argued that the Constitution gave the president the power to veto encroaching laws or “even to disregard them when they are unconstitutional.”

    That background should make the same-sex marriage issue interesting if it reaches the Supreme Court. Lawyers David Boies and Ted Olson seem eager to make that happen with their effort to end California’s voter-imposed ban on gay marriage. Within an hour of the Justice Department’s announcement of the new policy, the lawyers cited the move as a reason for the U.S. Court of Appeals in the Ninth Circuit to overthrow Proposition 8 and allow gay marriages to resume in California.

    Refusing to defend a law on grounds that it is unconstitutional is rare but by no means unprecedented. Bloomberg Business Week columnist Ann Woolner found two instances: Under President George H.W. Bush, the Justice Department declared unconstitutional a law that essentially gave regulators preference to minority-owned broadcasting stations. And six years later, President Bill Clinton’s administration refused to defend a provision requiring the military to discharge most members of the armed services who were HIV-positive.

    So President Obama looks to be on solid ground in turning his back on the law that his administration had been defending for two years. He was right that popular views have changed in the 15 years since both houses voted overwhelmingly for it and President Clinton signed it.

    His bold move could hasten the growing acceptance of same-sex marriage in California, in Maine and throughout the nation.

  • 284. AnonyGrl  |  February 28, 2011 at 1:46 am

    Nice! Thanks!!!

  • 285. Kathleen  |  February 28, 2011 at 3:50 am

    Someone here posted a list of examples from the past few administrations where the President has chosen not to defend legislation. I thought I'd kept a copy, but not can't find it.

    Anyone know which post it was in?

  • 286. New  |  February 28, 2011 at 4:08 am

    #246

  • 287. Richard A. Jernigan  |  February 28, 2011 at 4:13 am

    OT, but I need help. One of the posts after the debut of "Born This Way" included the lyrics. I meant to print it out, but forgot to, and now BZ wants a copy. Does anyone remember the title of the thread it was in?

  • 288. Kathleen  |  February 28, 2011 at 4:20 am

    Thank you, New.

  • 289. Kathleen  |  February 28, 2011 at 4:23 am

    That should have been "Thanks, Dave" (Dave in CA).

    And every time I see the posts from "Kathlene" I do a double take, trying to remember when I posted that. :)

  • 290. Kathleen  |  February 28, 2011 at 4:25 am

    Michelle Evans in comment #46 here: http://prop8trialtracker.com/2011/02/20/lady-can-

  • 291. New  |  February 28, 2011 at 4:32 am

    You're welcome <3

  • 292. Richard A. Jernigan  |  February 28, 2011 at 4:33 am

    Thanks, Kathleen! I now have the lyrics saved on my hard drive as well as in my P8TT email folder, and have printed a copy. I must say that I wish they would have used the Grammys video as the official video for the song. It is so much more powerful!

  • 293. Kathleen  |  February 28, 2011 at 4:50 am

    Do you think we could convince Anonymous to get this video broadcast through Fox "News"?

  • 294. MSNBC interview with Glen&hellip  |  August 12, 2011 at 8:51 am

    [...] the recent decision by the DOJ to no longer defend DOMA (February 23, 2011) which can be found here. Share this:ShareEmailPrintFacebookTwitterDiggRedditStumbleUponLinkedInLike this:LikeBe the first [...]

  • 295. Prop 8 Trial Tracker &raq&hellip  |  December 26, 2011 at 11:17 am

    [...] We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. Today’s is to recall the big news back on February 23rd, when the Obama administration announced they’d no longer defend DOMA in court. Their full memo is below. It spurred an incredibly vibrant comment thread with 293 comments on the decision, which you can find here. [...]

  • 296. Prop 8 Trial Tracker &raq&hellip  |  April 3, 2012 at 2:28 pm

    [...] we wrote about here at Prop8TrialTracker.com, in February of 2011, the Department of Justice announced its determination that sexual orientation [...]

  • 297. Prop 8 Trial Tracker &raq&hellip  |  October 27, 2012 at 2:28 pm

    [...] couples married under the laws of the states in which they live. His Justice Department has opposed the law in court since February 2011, arguing that DOMA should be considered under the more [...]

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