Feds appeal Mass. rulings against US marriage law

[ProSense]

Source: Associated Press

BOSTON – The U.S. Department of Justice on Tuesday defended the federal law defining marriage as between a man and a woman by appealing two rulings in Massachusetts by a judge who called the law unconstitutional for denying federal benefits to gay married couples.

In two separate cases, U.S. District Judge Joseph Tauro in July ruled the federal Defense of Marriage Act, known as DOMA, is unconstitutional because it interferes with a state's right to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The notice of appeal filed Tuesday did not spell out any arguments in support of the law. The appeals eventually will be heard by the 1st U.S. Circuit Court of Appeals in Boston.

The Justice Department had no immediate comment on the appeals.


Read more: http://news.yahoo.com/s/ap/20101012/ap_on_re_us/us_gay_marriage_benefits_4

[Name removed]

1. Deleted message

Message removed by moderator. Click here to review the message board rules.

[ProSense]

2. WTF? n/t

[RecoveringRighty]

30. I had the same reaction

What is Pres. Obama doing? Trying to appeal to far right wing tea-partiers?
This leaves me scratching my head, though I won't jump to conclusions since he needs us now more than ever.

[boppers]

48. That how it's supposed to work.

"The notice of appeal filed Tuesday did not spell out any arguments in support of the law."

Justice is supposed to fight in favor of existing law, good or bad.

They are not required, however, to make *good* arguments.

[No Elephants]

54. LOL! Wrong on both counts.

"Justice is supposed to fight in favor of existing law, good or bad."

Nope. Nothing says D of J is "supposed" to defend all laws. It is nothing more than a practice D of J once ill-advisedly chose for itself, for no apparent reason, and can "unchoose" whenever it wishes. And should.

Unfortunately, it is a practice a tradition that Holder chooses to follow, also for no apparent reason.

What ALL federal officials, including Holder, ARE "supposed" to do is honor the oath each of them takes to defend and protet the onstititution. Fighting to preserve a law you believe to be unconstitutional is inconsistent with with that oath. Hence, the practice D of J once ill-advisedly chose for itself, for no apparent reason, violates that oath and should be ended.

Also, D of J IS supposed to represent the people of the United States, not the government of the U.S. or the Congess of the U.S. and certainly not the "bad laws" of the U.S. Lawyers have an ethical obligation to represent their clients vigorously. You do not represent the people of the United States vigorously when you defend laws you believe to be unconstitutional.


"They are not required, however, to make *good* arguments."

Um, yes, they are. Again, lawyers have an ethical obligation to represent their clients vigorously. Making arguments you believe are lame is not representing your client vigorously. Pleading anything to a court in bad faith is also a violation of federal court rules and the law of every state. Deliberately making an argument you believe to be weak would qualify as bad faith, as well as not representing your client vigorously.

[boppers]

59. "protet the onstititution"

Uhm.

I'll assume your "C" key is sticky.

Little more needs to be said.

[JustinL]

60. translation: "I have no substantive rebuttal to your post, so I'll settle for juvenile mockery" n/t

[boppers]

61. If one cannot be bothered to post carefully, I will not bother myself with a rebuttal.

If one refuses to read their own words carefully, and thoughtfully, there's very little point in me saying anything.

[customerserviceguy]

3. They had to do this

In order to get this case moved up the ladder of the court system. The Massachusetts case is far stronger than the one from the Federal courts in California, it deals with DOMA as violating a state's right to define marriage within its borders, and the Federal government has a long history of deferring to the states as to who's married, and who's not.

Without an appeal, this applies only to MA, at the next level, it applies to the entire circuit that MA is a part of, and includes New Hampshire where equal marriage is also the law of the land. I expect the Justice Dept. to appeal again, and then the SCOTUS can overturn this part of DOMA.

[Toucano]

4. Right. SCOTUS is going to overturn DOMA.

Have you seen the SCOUTS lately?

Maybe you know something I don't. :-)

[customerserviceguy]

8. Yes, the arch-conservative four

will bend any line of reason to screw with equal marriage, but Kennedy will be able to see the long-standing tradition of allowing the states to define marriage within their borders for Federal purposes.

Aside from same-gender marriage, can you think of any other situation where a state's definition of marriage law is not applied to Federal law? I sure can't.

This is an anomaly that will be done away with, hell, I frankly expect even Scalia will not be able to find a rational argument against it. He was on the side that said that flag burning was free speech, if you recall.

There's a difference in finding a Constitutional right for gay people to marry, and simply recognizing that marriage has different definitions in the several states. Making it easier for Kennedy is the fact that the FF&C clause of the Constitution is not involved in this case. Ruling in favor of the MA case does not automatically require Alabama to recognize an Iowa marriage between spouses of the same gender, as that issue is not part of the original suit.

[Doctor_J]

10. The same Kennedy who voted Smirk into office over the will of the people?

The same one who gave democracy away to the Chamber of Commerce and every Tom, Dick, and foreign terrorist? you're very long on hope and short on recent history.

[TheWraith]

11. Kennedy has an excellent record on gay rights.

In fact, he's really only bad on "business" related cases.

[customerserviceguy]

12. He's been the swing vote a number of times

I believe he will be this time. Otherwise, if the DOJ failed to appeal, then the decision would just apply to Massachusetts, and no other place.

Clearly, the CA decision is racing towards the Court, as well. We're bound to have some sort of SCOTUS ruling on equal marriage in the next few years, no matter what.

[No Elephants]

56. You know what D of J's unspoken motives are AND how Kennedy will vote on this? Wow.

[Name removed]

9. Deleted message

Message removed by moderator. Click here to review the message board rules.

[customerserviceguy]

14. There are things that resemble that form of chess

But this is not one of them. Cases are ripe in the states where equal marriage is established, and Federal recognition of those marriages is lagging behind. Every other sort of marriage variation (first-cousin, community property, and interracial) all had a period where they were unsettled as to Federal standing, but in each case, the right of the state to define marriage always won the day.

I see no reason as to why it wouldn't be the case in this situation.

[No Elephants]

57. Inter-racial: Loving v. Virginia. Virginia lost.

Not familar with a first cousin SCOTUS case but there was no equivalent of DOMA for first cousins, so no Supremacy Clause issue. And, if a state refuses to recognize a marriage between first cousins, the U.S. saves money. In this case, setting aside DOMA bc of state law would cost the U.S. in taxes and OASDI. So, prior cases are all different.


It's going to be a straight equal pro decision as to whether a federal law has to suck it bc of a state law, not a states' rights decision. Supremacy Clause.

[No Elephants]

55. Please see Reply 54. No matter whether the motive is good, bad or an ill advised

tradition, what I posted in Reply 54 about legal ethics and bad faith pleading pertains. You are implying D of J is appealing this for a reason other than defeating Massachusetts. In so doing, you are ascribing to D of J conduct that is both illegal and unethical.

[iandhr]

5. requirement

"President Barack Obama has repeatedly said he would like to see the 1996 law repealed. But the Justice Department has defended the constitutionality of the law, which it is required to do."

IF there is a federal law being challenged the Justice is REQUIRED TO DEFEND IT. EVEN IF THEY DISAGREE.


What alternatives does DOJ have

[Newsjock]

6. A ruling has already been made

DOMA is unconstitutional. The DOJ has already defended the law ... and lost. They have grounds to appeal only if an error was made during the trial -- not just because someone "doesn't like" the ruling. Otherwise, every federal case would end up at the SCOTUS.

But then again, for the DOJ to sit back and let this go would require fierce advocacy.

[msanthrope]

7. Um--Lamarr Smith is asking the court if he can appeal---

Not kidding. Because he isn't sure that the DOJ will defend DOMA properly.

Not for anything, but it's the DOJs job to defend the laws of Congress that are challenged.

[TheWraith]

13. You're mistaken.

The DOJ's "duty to defend" requires it to pursue all legal arguments, even if they're likely to lose. Whether the case is appealed or not has NOTHING to do with whether it ends up at the SCOTUS: that's a function of whether the Court of Appeals and/or the SCOTUS choose to take it.

[Exilednight]

45. You're mistaken ...........

The DOJ is not required to defend every law. The DOJ is suppose to be free reigned and decide what they will and will not defend.

Chief Justice Roberts wrote:

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever "reasonable" arguments can be made in support of such statutes — i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches — the Congress that voted for the law and the President who signed it — have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)


Read more: http://www.queerty.com/actually-mr-president-the-doj-does-choose-not-to-defend-discriminatory-laws-20090819/#ixzz12HzrHouI

[boppers]

49. It's automatic, but without substance.

"The notice of appeal filed Tuesday did not spell out any arguments in support of the law."

[JustinL]

35. required by what?

As reported in Americablog:

In fact, George W. Bush (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."), Bill Clinton (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."), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha - "Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.") all joined in lawsuits opposing federal laws that they didn't like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

What requirement was violated by the previous four administrations? What exactly is it that requires the Justice Department to defend every law, even laws that blatantly violate the Fourteenth Amendment of the Constitution?

[No Elephants]

58. Nope. Not a requirement at all. See Reply 54--and Dof J's own website,

which says it's a tradition D of J adopted for itself.

[naaman fletcher]

15. Obama administration appeals ruling backing gay marriage

Source: reuters

(Reuters) - The Obama administration on Tuesday decided to appeal a judge's ruling that prevented the U.S. government from banning same-sex marriages.

The Obama administration filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act that barred gay marriages, even though President Barack Obama had previously opposed the law.

U.S. District Judge Joseph Tauro in Boston ruled in July for several gay couples who had argued that the Defense of Marriage Act interfered with the rights of states to define marriage.

Read more: http://www.reuters.com/article/idUSTRE69B63U20101012?feedType=RSS&feedName=politicsNews&rpc=22&sp=true

---

hope and change. more at link.

[HockeyMom]

16. Be patient

It will come. The YOUTH of America will lead the way when us old foggies (me) are just a memory. I have faith in the future generation of Americans.

[Radical Activist]

18. This will find its way to the Supreme Court

unless Congress acts to repeal first. The process has to be played out.

[xchrom]

20. So the 'right thing' is to wait for a bunch a folk to die?

Really?

[Demeter]

28. Death's Only Value

Clearing out the forest so the cycle of life continues...

[HockeyMom]

37. You are talking to somebody who IS old

Yeah, my generation's time is past. The young will inherit the world. I hope this generation, and my children, will do a better job than we have with it.

[Book Lover]

32. I rather think the gay and lesbian folks who are *also* old fogies would rather not wait any longer

n/m

[Radical Activist]

17. "the administration was defending the statute because it was obligated to defend federal laws"

FYI, you're allowed four paragraphs so you could have included the next part of the article in your OP:

Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.

"As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed," said Justice Department spokeswoman Tracy Schmaler. "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged."

[GodlessBiker]

31. It wasn't "obligated" to; this is a matter of "tradition." Fuck tradition!

[JustinL]

33. obligated by what?

What obligation do they have that outweighs the Fourteenth Amendment rights that are blatantly violated by DOMA?

[Angry Dragon]

19. When the rights of one are denied, the rights of all are denied.

[tularetom]

21. This is what happens when you don't fire all the bush appointees

IIRC every previous administration has requested the resignations of all the US attorneys and accepted those submitted by appointees of the opposing party.

The Obama admin did not do this. And remember many of the US attorneys appointed by the cheney/bush gang were religous ideologues, recruited out of wing nut diploma mills by karl rove and his henchmen. So this DOJ is still full of lots of people at the working level who have a theological objection to gay marriage.

Of course the AG can overrule these religious wackos, but this AG has shown no inclination to act like he is in charge. Like why is Don Siegelman still in prison?

I think they will get their ears pinned back on this appeal which will make them look even more inept.

And we may as well give up any hope of seeing the war criminals that got us into these clusterfuck entanglements prosecuted.

[Radical Activist]

22. The Justice Department cannot pick and choose what laws to enforce.

How would that work if it happened under the next Republican President? Would you want the Justice Department to not defend civil rights laws that the next President doesn't like?
The Justice Department is doing what it's supposed to do no matter who's living in the White House. They don't write the laws. Congress does.

[KamaAina]

25. Apparently California's AG (Jerry Brown) and Governator (Arnie) can.

They've chosen not to appeal the recent ruling consigning Prop H8 to the ash heap of history.

The only explanation that makes sense is the one upthread, that they're doing this to get a ruling from the 1st Circuit (which only adds three other states and PR) and eventually SCOTUS (remember, Fat Tony and Kennedy are both 74).

[Radical Activist]

26. False equivalency.

Those are state officials dealing with a state, not federal, law.

[iandhr]

27. And there is a lawsuit (I believe)

to attempt to force them to defend Prop 8.


And that is CALIFORNIA LAW. Which is separate from FEDERAL LAW

[jberryhill]

29. Not even closely analogous

The prop 8 proceeding dealt with whether a voter referendum could contravene a prior state court constitutional decision.

Prop 8 was not an act of the California legislature, signed into law by a California governor.

[JustinL]

34. so when do the torture prosecutions start? n/t

[GodlessBiker]

36. This isn't about enforcing laws. This is about ...

acknowledging the roll of the judiciary in our legal system.

On another issue, the CA District Court just enjoined the administration from enforcing Don't Ask, Don't Tell. Should the executive branch enforce the law even though the judiciary told it not to?

[Exilednight]

46. Yes the DOJ can, see response #45. n/t

[Larkspur]

23. And the Obama Admin is still wondering why the Dem base is not motivated to vote in Nov?

Guess those Ivy League school educations are overrated.

[Exilednight]

47. Bush had a masters from Yale. That should be enough to tell you ..........

just how overrated they are.

[boppers]

50. "Ivy League school educations"?

They filed an appeal without any arguments in support of the law, IOW, an appeal *designed* to fail. This is putting a stamp on it that says "hey, we concur, but it's our job to argue this, so here's a useless argument!"

Maybe they're overestimating the US public, whose primary understanding of the legal system seems to come from "the teevee".

[TeaBagsAreForCups]

24. Shocked, I say...

... I am just shocked that our "progressive" President would do such a thing.

Again and again and again.

[DeSwiss]

38. Obama administration appeals gay marriage ruling

Source: Reuters

Obama administration appeals gay marriage ruling

Reuters | By Jeremy Pelofsky | WASHINGTON | Tue Oct 12, 2010 7:06pm EDT

WASHINGTON - The Obama administration decided on Tuesday to appeal a judge's rulings that prevented the U.S. government from banning same-sex marriages, a move that could undermine support among President Barack Obama's traditional liberal base ahead of a key election.

The Obama administration filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act, or DOMA, that barred gay marriages, even though Obama had previously opposed the law.

Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.

"As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed," said Justice Department spokeswoman Tracy Schmaler. "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged."

Read more: http://www.reuters.com/article/idUSTRE69B63U20101012

---

- I stand corrected.

[WillParkinson]

39. :sigh:

I'm going to vote. I'm not going to like it.

[aquart]

40. Meantime lives continue to be destroyed.

And it skeaves me that he keeps insisting the proper remedy is through this malicious Congress.

[The Northerner]

41. How disappointing

[Donnachaidh]

42. jesus h. christ on a cracker

WTF is wrong with these people? They had a perfect out, just let it ride for 61 days. WHY this? What the hell is it going to take?

[boppers]

51. The supreme court refusing to hear the case, letting the lower court ruling stand.

If you're pro gay marriage across the entire country, rather than just in one state, this is how to do it without Congress.

[Donnachaidh]

52. do you honestly think Scalia is going to refuse to hear this?

He's probably jonesing NOW at the thought of slapping down the gay community.

[boppers]

53. He had his day, and lost.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

[msongs]

43. obama seems to have issues with gays and lesbians nt

[NC_Nurse]

44. Christ on a crackpipe! WTF!!!

I am really getting tired of this horseshit. Damn.