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Obama administration says marriage law discriminates against gays but will still defend it

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  1. “However, the same briefing reveals the Justice Department will defend the statute as it can be argued that the law is constitutional.”

    Can someone who understands US politics explain this to me? How can discrimination be constitutional in this case?

  2. Iris, I think Obama is still trying to appear as a moderate and not give fuel to his opposition. The thing is, a lot of conservative Americans don’t think gay people even deserve rights, let alone protections. Some states still have discriminations in daily life on their books, though enforce them less especially after Texas’s sodomy law was struck down in the Supreme Court (but not unanymously). In Virginia, gay people aren’t even allowed to sign private legal contracts with other gay people. So there’s still a lot of interior cultural opposition that is regionally a mainstream gripe. In Utah, there are no legal protections for gay people – they can be denied service, fired from their jobs, evicted by their landlords, at a whim.

    And I’m guessing Obama doesn’t want to fight laws like DOMA in the courts where his opponents scream buzzwords like “activist judge” any time there’s a progressive court decision they don’t like. Obama still seems to see himself as a moderate, rather than conservative or liberal.

    But DOMA must be repealed – it’s an abhorrent law. I don’t agree with Obama deciding to defend it in court, but it’s possible that Congress may indeed ultimately be the most effective place to repeal it.

  3. My understanding is that the “executive”, which in the case of federal law and the US constitution is represented by the presidential administration, (traditionally) has to defend the statutes on the book until they are repealed by the legislative power (congress+senate) or found to be unconstitutional by the courts.

    What happened in California, where the attorney general decided not to defend proposition 8 in last year’s lawsuit was very unusual and a very strong political statement that many didn’t like. Many people would want Obama to take that kind of stance but he’s unlikely to do so because he is constantly trying to avoid taking positions that will alienate a considerable part of the electorate.

    As per your question as to how discrimination can be constitutional, the question is always to define what discrimination is. Until the constitution clearly states that it is unconstitutional to treat marriage as the union of only one man and one woman, it comes down to the supreme court justices’ interpretation as to whether or not it is.

    PS: I’m clearly no expert – this is only my understanding of it from reading around.

  4. Although the US government has traditionally defended laws in the courts, it hasn’t always defended them that strongly. In fact, since the Carter administration in the Seventies (and every administration since then) if the party in power has found a law to be in opposition to its core beliefs, it’s effectively told the Department of Justice to only put up the most basic of defences.
    Obama’s argument that the government always has to defend its laws is pretty feeble considering Presidential action over the last 40 years.
    I appreciate the argument that a Congressional change in law would be the better way to go, but ultimately that’s a nit-picking defence. At the moment Obama has a majority in Congress that no other Democrat president has had and should he wish to force something through Congress and the Senate, he could do so.
    However, we only have to look at the health legislation at the moment to see that Obama can’t force stuff through with his own party supporting him because the Democrats don’t respect or admire him – never mind the Republicans.
    As a President, the guy isn’t prepared to allow the law to change on gay equality to succeed through judicial action and he’s not powerful enough to force it through legislatively.
    He might be impressive in other matters, but Obama the Candidate’s arguments and promises about gay equality fall apart the second you look at them closely when he’s Obama the President.

  5. Simon Murphy 18 Aug 2009, 9:03am

    He’s just another lying, 2 faced, hypocritical politician. As if that were ever in doubt.

  6. This is like the Gay pensions debacle in the early years of the Labour Govt, when they claimed to be into Gay Rights but would not let a lesbian inherit her partners pension! They took it to Court, costing the tax payers a few million. And WHO defended the case? Cherie Booth, the PMs Mrs!!!!!

  7. I am becoming more and more disheartened with the President as time goes on.

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