Box Turtle Bulletin

DOMA Fight The New Wedge Issue

Except this time, it’s the pro-equality side who win:

In what is perhaps a watershed moment in the long fight for gay rights, the current battle over the Defense of Marriage Act is being waged with at least tacit acknowledgment from all sides that it is a political winner for pro-gay-rights Democrats.

…On Wednesday, House and Senate Democrats held separate press conferences announcing the introduction of legislation to repeal DOMA. Rep. Barney Frank (D-MA), one of the sponsors of the House bill, was asked whether Democrats were politicizing gay rights as a wedge issue against the GOP, as Majority Leader Eric Cantor alleged last month.

“What do I say to the idea that this is a wedge issue? I say ‘Hallelujah,'” Frank told reporters. “The fact that we’ve now evolved to the point where the Republicans are complaining about the fact that we introduced this bill because it causes them political problems is a great sign of progress. It used to be the other way around.”

Huh!

Boehner Announces Defense of DOMA

TPM reports that House Speaker John Boehner (R-OH) has issued a statement announcing that the House will intervene as a third party defendant in court cases challenging the constitutionality of the Defense of Marriage Act. TPM quotes from the statement:

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said in the statement. “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”

Of course, the president didn’t determine the law’s unconstitutionally unilaterally. The administration instead determined that they could not defend the law’s constitutionality based on the facts and heightened scrutiny. The administration also threw some bait in Boehner’s direction, pointing out that the House was perfectly within its rights to argue in court that that the law did not result in discrimination against LBGT couples. Boehner dropped the “only interested in the budget” charade to take the challenge. This should be fun.

The Hill reports that the action was taken based on a party line vote following a thirty-minute meeting, with Boehner joining House Majority Leader Eric Cantor (R-VA) and House Majority Whip Kevin McCarthy (R-CA) supporting the move. House Minority Leader Nancy Pelosi (D-CA.) and House Minority Whip Steny Hoyer (D-MD) voted no.

Log Cabin Head Backs Boehner’s Steps Toward Defending DOMA

Fireworks ensued.

LCR issued a press release calling on House Speaker John Boehner not to “take the bait” on DOMA. Now that Boehner is taking initial steps to do precisely that, LCR’s R. Clarke Cooper is covering his back, although he says that his support is limited to the current exploratory steps.

Log Cabin Republicans are still battling to have “Don’t Ask, Don’t Tell declared unconstitutional. While the Congress and Administration have already taken steps to have the law fully repealed sometime this year, the issue remains that repeal will not include an anti-discrimination clause. And with out that, future presidents will be free to impose a ban on gays serving in the military unilaterally via executive order. LCR has denounced the Justice Department for continuing to defend DADT.

Boehner responds to Obama’s refusal to defend DOMA

House Speaker John Boehner has announced the direction that he will go in response to Attorney General Holder’s declaration that he and President Obama would no longer defend the constitutionality of the Defense of Marriage Act. And it appears, to me, to be a measured and non-hysterical response. (WaPo)

Boehner said he will convene a meeting of the Bipartisan Legal Advisory Group, a first step toward taking action in the House to defend the law.

“It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” Boehner said in a statement. “The constitutionality of this law should be determined by the courts – not by the president unilaterally – and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”

On the Bipartisan Legal Advisory Group are the top three House Republicans – Boehner, Majority Leader Eric Cantor (Va.) and Majority Whip Kevin McCarthy (Calif.) – and the top two House Democrats – Minority Leader Nancy Pelosi (Calif.) and Minority Whip Steny H. Hoyer (Md.).

The group has the authority to instruct the House general counsel to take legal action on behalf of the House. It typically gets involved in situations where leaders believe there are institutional or separation-of-powers concerns.

This is, in other words, the appropriate group to consider whether there is any issue of the President acting in a manner that violates the rights of the Congress.

Boehner is walking softly on this issue, and this “all by the book” response is far more measured that I would have predicted. I wasn’t expecting him to appoint the Pacific Justice Institute to represent the House, but I also wasn’t expecting him to treat the matter as though the President’s position should be given any thought before responding or to invite the Democratic leadership to participate in the response.

And the language he has selected – language that does not insist that DOMA is constitutional and makes no appeal to “protecting the family” or “the will of the people” or even a reference to a “homosexual agenda” – speaks of disapproval of process or timing rather than homophobic posturing.

It is far too little and far too soon to read too much into this (and I am aware of my inclination to look for the silver lining), but somehow it feels as though there has been a shift. It feels to me as though the Republican leadership may be moving away from knee-jerk dismissal of the claims of gay citizens. It’s hard to put my finger on it exactly, but it feels different, as though they aren’t agreeing or supporting, but finally they’ve started listening.

Boehner to Announce DOMA Defense by Week’s End

So much for focusing on the budget:

Asked if the House would appoint a special counsel to defend the law itself in the White House’s stead, Boehner said, “It’s an option being considered” and added that he would likely have a decision on how to proceed “by the end of the week.”

“I’d be very surprised if the House didn’t decide that they were going to defend the law,” Boehner said. Surprisingly, he suggested that the move was likely beneficial to Democrats in the next election.

House Speaker John Boehner also spoke to David Brody of Pat Robertson’s Christian Broadcasting Network over the weekend:

David Brody; “Rick Santorum says that the Speaker of the House should appoint a counsel representing the House of Representatives to take up the case and argue DOMA in federal court. Is that a good idea?”

Speaker John Boehner: “It’s an option being considered.”

David Brody: “And on these options the bottom line is that something is going to happen from the House and something will get done?”

Speaker John Boehner: “I’d be very surprised if the House didn’t decide that they were going to defend law.”

David Brody: “How frustrated are you with this President? Do you believe it’s an overreach to the point where it gets back to the Czar issue to a degree?”

Speaker John Boehner: “It strikes me as something that’s just as raw politics as anything I’ve seen knowing that a lot of people who believe in DOMA are probably not likely to vote for him and pandering to the other side on this issue.”

Obama’s DOMA Strategy “Deep and Cynical”?

Jason Kuznicki at the Cato Institute wrote, “Jim Burroway hints that Obama’s strategy here is both deep and cynical.” If there is a hint of that in what I wrote, then that hint was the furthest thing from my mind. Given the particular circumstances that arose in the two cases that brought about this announcement (specifically that there is no legal precedent in this particular circuit of Federal Court as to which level of scrutiny is appropriate for DOMA challenges), I think the administration’s determination is highly principled and well-supported, or, in Kuznicki’s word, “deep” (although he may have meant that differently than I do).

It does not, however, mean that there are no potential political repercussions emanating from the announcement, and my pointing them out was not based on a suspicion of a “cynical” motive. Surely, Holder did dangle a political carrot in front of Boehner (and, more broadly, in front of social conservatives who would surely urge Boehner to grab it) by pointing out that Congress can decide to defend DOMA. And there’s no doubt that most Democrats would strategically, if quietly, welcome just that very move, which would then be taken as evidence that the GOP isn’t serious about focusing exclusively on the deficit. — which would be the very definition of cynicism. But that latter part isn’t evidence of cynicism behind the Administration’s legal decision itself. It’s simply an observation that there are rippling repercussions from the decision; some of them are political and some of the political reactions will also be cynical — as if anyone would be surprised by that. I don’t mind Kuznicki’s putting the cart before the horse; he sees things differently from me. I would just rather he hadn’t tried to put my words in the horse’s mouth.

Mike Huckabee on Obama’s DOMA Decision

Obviously, he’s not happy with it. He also hints that if he became president, he would re-impose “Don’t Ask, Don’t Tell.”

Will Obama’s DOMA Decision Backfire?

That’s what Daily Beast’s Eve Conant and Daniel Stone seem to think after talking with ant-gay activists who see an opening in the Administration’s new stand on defending the so-called “Defense of Marriage Act” in the courts.

By failing to defend marriage, the administration may open the door for those passionately opposed to gay marriage to have what they feel they’ve been lacking: a stronger legal voice. In Massachusetts, which is also in the midst of a legal challenge to DOMA, traditional marriage activists, after the initial shock, are finding themselves equally emboldened. Kris Mineau of the Massachusetts Family Institute says, “It’s a horrible situation when the president and the attorney general refuse to carry out their constitutional duties. We are now asking Congress to do its job.” But he says the law, in his view, “says that under unusual circumstances people who are friends of the court can participate in oral arguments.” Previously barred from doing so in the state’s key DOMA challenge, Gill v. Office of Personnel Management, he says, his legal team is working on documents to take part in oral arguments “with real resources and with people who have a passion for success” in battling gay marriage. Mineau says the government’s defense of DOMA thus far “has amounted to something along the lines of ‘we’re personally against DOMA but we’re here today to defend it.'” That watered-down approach, he says, left traditional marriage supporters feeling hopeless.

If the Justice Department’s stand that DOMA should fall under heightened scrutiny holds sway in the courts, then groups like Massachusetts Family Institute with their impassioned position against same-sex marriage would actually prove the Administration’s case under one important aspect of heightened scrutiny: a history of discrimination. We already saw how well this played out so far in California, where widespread evidence of discrimination and expressions of anti-gay bigotry became important pivots on which Federal Judge Vaughn Walker’s decision rested.

On the other hand, Conant and Stone argue that the GOP-led House could try to take the case completely out of the DOJ’s hands altogether so that they would not even be present in court to argue for heightened scrutiny:

Committee lawyers have been summoned early next week to meet with Boehner and other officials to discuss their options. One leading strategy would be to stage a sort of legislative intervention, in which Congress’ counsel would remove the Justice Department’s authority to defend DOMA.

Administration officials aren’t opposed to that idea. In a letter to Boehner, Attorney General Eric Holder suggested Republican leaders appoint more lawyers to defend the law themselves, without Justice attorneys.

I see two potential problems here: If Congress were to intervene and remove DOJ’s authority to defend DOMA, wouldn’t the Democratic-controlled Senate have to go along with it? And secondly, as I read Attorney General Eric Holder’s letter, I don’t get the sense that he agrees that DOJ should be removed altogether from defending DOMA or that Republicans leaders should defend the law themselves “without Justice attorneys,” as if Justice would be willing to voluntarily step aside. “We will remain parties to the case and continue to represent the interests of the United States throughout the litigation,” he clearly added, after acknowledging that Congress can play a role in defending the statute.

On DOMA, Social Conservatives Howl While Pols Shrug

By virtually any measure, the Obama Administration’s announcement that they will no longer argue that the so-called “Defense of Marriage Act” is constitutional portends a monumental shift, with repercussions we are all still trying to sort out. Anti-gay activists are, predictably, howling with rage, calling on Congress to intervene. But as we noted, House speaker John Boehner refused to take the bait, and is instead sticking to his promised focus on slashing the budget. The New York Times noticed similarly tepid reactions among many other political conservatives:

In the hours that followed, Sarah Palin’s Facebook site was silent. Mitt Romney, the former governor of Massachusetts, was close-mouthed. Tim Pawlenty, the former governor of Minnesota, released a Web video — on the labor union protests in Wisconsin — and waited a day before issuing a marriage statement saying he was “disappointed.”

Others, like Newt Gingrich, the former House speaker, and Haley Barbour, the governor of Mississippi, took their time weighing in, and then did so only in the most tepid terms. “The Justice Department is supposed to defend our laws,” Mr. Barbour said.

Asked if Mitch Daniels, the Republican governor of Indiana and a possible presidential candidate, had commented on the marriage decision, a spokeswoman said that he “hasn’t, and with other things we have going on here right now, he has no plans.”

Former Arkansas governor Mike Huckabee, who is also believed to be a presidential contender, is among the few to come out strongly against the Administration’s decision, calling children being raised by LGBT parents “our little guinea pigs.” Mark McKinnon, a Republican strategist for President Bush’s 2004 campaign which deployed marriage as a major wedge issue to turn out conservative voters, may well be right: “The wedge has lost its edge,” he told the Times. Of course, there’s still plenty of time for that to change between now and 2012.

DOJ will “cease to defend” DOMA in Gill and Commonwealth cases

GLAD is announcing:

The Department of Justice followed Wednesday’s withdrawal from two DOMA cases in the Second Circuit, including GLAD’s Pedersen v. OPM by notifying the clerk of the First Circuit that they will also “cease to defend” the two consolidated DOMA cases, Gill v. Office of Personnel Management and Massachusetts v. HHS.

According to the letter, the DOJ will remain parties to the case but will cease to defend Section 3 of DOMA. They also notified the court that Congress will be given the opportunity to defend DOMA Section 3.

DOMA: recap, summary, and analysis

It has been a day since Attorney General Holder announced the Obama Administration’s position on the constitutionality of Section 3 of the 1996 Defense of Marriage Act, and we are beginning to get a sense of how this will impact individuals in various states. Some of this is consistent with early assumptions and thinking, some is different from my earlier thoughts, and some is as yet unclear.

DOMA

Before we discuss the impact, let’s revisit the law. DOMA had three sections and, to better understand the issue, here is the law as it is on the books:

Section 1 named the act: “This Act may be cited as the `Defense of Marriage Act’.”

Section 2 revised chapter 115 of the United States Code, which deals in part with the full faith and credit aspects of states’ interaction, and gave permission to the states to ignore any marriage laws of other states that relate to same-sex couples:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3 revised Title 1, Chapter 1 of the United States Code to define “marriage” and “spouse.” Prior to DOMA, these terms were defined by the states and not by the federal government. It is significant and telling that DOMA’s third section was placed in such a prominent position in the US Code; it says that for all of our social contract, our form of government, our protections and requirements and obligations and rights, before we consider anything else, we shall exclude same-sex couples from consideration:

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.

The challenges and the Administration’s postion:

The challenges to DOMA to date are as follows:

Commonwealth of Massachusetts v. United States Department of Health and Human Services (1:09-cv-11156-JLT) – Massachusetts has defined its marriage laws according to its community standards as, since the inception of the nation, states have been allowed to do. However, upon Massachusetts’ recognition of marriage between same-sex couples the federal government ignored the state’s issuance, recording and recognition, instead choosing to implement Congress’ definition of marriage. Massachusetts Attorney General Martha Coakley sued the Department of Health and Human Services to defend the state’s rights and the case was heard by Federal First Circuit Court Judge Joseph Tauro.

Gill v. the Office of Personnel Management (1:09-cv-10309-JLT) – Nancy Gill and Marcelle Letourneau, along with other same-sex couples married under the laws of the commonwealth of Massachusetts, argued that Section 3 of DOMA violated the equal protections provisions of the US Constitution. They were represented by Gay & Lesbian Advocates & Defenders (GLAD) and the case was consolidated with others (see above) and argued before Judge Joseph Tauro in conjuction with Commonwealth.

On July 8, 2010, Tauro found that Congress had exceeded its authority by seeking to assume powers that were reserved to the states (Commonwealth). Separately, he found that there was not even a rational basis for unequal treatments between legally married heterosexual couples and legally married homosexual couples (Gill).

My observations at that time were

These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.

Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.

The Justice Department appealed Tauro’s decision on October 12, 2010 and filed a brief on January 14, 2011 defending DOMA.

Dragovich v US Dept. of Treasury (4:10-cv-01564-CW) – The Legal Aid Society sued on behalf of California public employees who were not allowed to include their spouses in CalPERS’ long-term care plan due to federal restrictions on the state program’s recognition of marriages and spouses.

On January 18, 2011, Ninth Circuit Federal Judge Claudia Wilkin refused the government’s motion to dismiss in a response that strongly indicated that Wilkin would find that Section 3 of DOMA violated both the due process and equal protection provisions of the US Constitution.

Pedersen et al. v. Office of Personnel Management (3:10-cv-01750-VLB) – Following on their success in Gill, GLAD filed in the Second Circuit Court on behalf of Joanne Pedersen & Ann Meitzen, a legally married couple under Connecticut law along with couples married in Vermont and New Hampshire.

Pedersen was filed on November 9, 2010, and the first round of filings are due on March 31. At that time the Department of Justice can file for dismissal and GLAD can file for summary judgment.

Windsor v. United States (1:10-cv-08435-BSJ)- This case, filed by the ACLU, has a unique fact pattern. Edie Windsor and Thea Spyer married in Canada in 2007 and their marriage was recognized by their home state of New York (which does not currently grant marriage licenses to same-sex couples). When Spyer died, her estate was taxed with no consideration to their marriage status.

Windsor was filed on November 9, 2010, concurrent with Pederson, and the date for the defense to file a motion to dismiss is March 31, 2011. (Holder’s letter places this date at March 11, but the docket states March 31. In either case, it is quite soon)

To recap, Commonweath deals with the rights of states to define marriage. Gill, Dragovich, Pedersen, and Windsor all deal with the rights of individuals to due process and equal access. None of these cases challenge Section 2 of DOMA or question whether one state must recognize same-sex marriages conducted in another.

What the Administration announced:

In his letter to Speaker of the House Boehner, the attorney general laid out a legal determination and a consequential plan of action. The legal determination was two-fold.

First, Holder recognized that in those court districts in which the appropriate level of scrutiny for anti-gay discrimination had no precedent, the defendants would be required to argue for such a level. And the Department of Justice found itself unable to make a cogent argument that only rational basis be applied.

The Supreme Court has established a three part test to determine whether rational basis or a stricter level of scrutiny be considered: a history of discrimination, immutable characteristics comprising a discrete group, and political powerless minority subject to majority whim. On all three of these, the DOJ found itself incapable of arguing for rational basis and thus found that only strict scrutiny could be applied to sexual-orientation based discrimination.

Secondly, Holder acknowledged that his office was incapable of presenting any argument in favor of anti-gay discrimination that could stand up to strict scrutiny. While theoretically rational basis arguments can be pie in the sky (though they must at least be rational), strict scrutiny required tangible real and compelling reasons for the discrimination that were tied to the legislature’s actual reasoning and there just wasn’t anything to present.

It is important to understand that the Administration did not say that it was refusing on unwilling to defend the law but rather that it was incapable of defending the law. There simply were no arguments to present to the court.

Those who claim that the Administration is “choosing which laws to defend” are either confused or dishonest. Those who say that this will “nationalize” same-sex marriage and impose it on unwilling states are either confused or dishonest. Those who go on TV and spout completely false information about this decision are either irresponsible or dishonest. I’m inclined to suspect ‘dishonest.’

In consequence, the DOJ announced that it would not present arguments to the judges in Pedersen and Windsor that these cases should be tried under rational basis. Should the judges independently determine that no stricter scrutiny than rational basis would be considered, the DOJ was capable of defending DOMA on rational basis pie in the sky notions.

But unless the judges independently determined that rational basis was the standard, the Department of Justice would not attempt to justify DOMA under stricter scrutiny because they had no arguments to present.

What does this mean?

Immediately, nothing. The law remains on the books, the Administration will continue to administer the law, and gay couples have no more federal recognition than two random roommates living in a dorm.

However, it is a very short time before this could all change. The House of Representatives has a small window in which to decide whether to defend DOMA in court. Should they fail to do so, then in March the courts will be presented with a motion for summary judgment (a request for a trial-less determination) which argues that DOMA Section 3 is unconstitutional, and in response the DOJ will say, “I got nothing.”

Presented with only one side, it is extremely probable that the judges will find for the plaintiffs and order the federal government to recognize their marriages. This could be limited to specific circumstances for individual plaintiffs or applied broadly against the United States and applicable to all same-sex marriages. However, without appeal to the US Supreme Court, then these decisions will only apply to same-sex married couples in Second Circuit states (Connecticut, Vermont, New Hampshire, and New York).

Should the House intervene, a not-unlikely possibility, then the House will be allowed to present arguments that only rational basis be applied and that DOMA’s discrimination achieves a governmental function. However, they will do so with the additional burden or explaining why not only the plaintiffs but the Department of Justice are incorrect in their interpretation of the Constitution.

Meanwhile the Massachusetts and California cases continue. It is difficult to know exactly how the Administration’s decision will play into these cases. Having announced that you believe DOMA Section 3 to violate the US Constitution, courts are less likely to believe the sincerity of arguments otherwise.

While GLAD has no certainty about how Gill is impacted, Massachusetts Attorney General Martha Coakley (at least publicly) believes that the DOJ will drop their appeal of Commonwealth (Globe).

“We assume they will withdraw their briefs. Unless we hear otherwise, we believe the Department of Justice’s intention is not to defend any of these cases,” said Coakley, whose suit contended that the federal law unfairly created two classes of married people.

Should the government withdraw its appeal in Gill and Commonwealth, then Judge Tauro will order the United States to recognize Massachusetts’ same-sex marriages. It is unclear whether the House would have any standing to appeal this DOMA decision.

But unless the federal government opts not to appeal to the Supreme Court and the House opts not to intervene, this issue will eventually end up before the Supreme Court (as it could through Dragovich or Perry). And there are a few ways the court could go.

Should they decide to hear Commonweath first, that could make all of the other cases moot. They could determine that states have, as they always have had, the right to define marriage. Doing so could avoid or delay any requirement to determine whether in such definition a state can distinguish between same-sex and opposite-sex marriages as Commonwealth does not address that issue.

Should they decide that the federal government has a newly found right to establish family law, then they would have to deal with the various other cases which deal with discrimination against individuals. This could be an interesting direction.

Although these cases are federal cases and speak only to what the federal government can do, should the SCOTUS find that federal anti-gay marriage law violates the constitutional rights of individuals, it is difficult to see how that would not also be true of the states. While we have assumed that Ted Olson and David Boies would be the ones to argue the unconstitutionality of banning same-sex marriage, it is possible that due to timing (delays or expedition) it could be GLAD or the ACLU.

Fox News Commenters on Obama’s DOMA Announcement

FoxNewsInsider has an exclusive video of Fox News personallity Judge Andrew P. Napolitano defending the Obama Administration’s announcement that they will no longer defend the constitutionality of the so-called “Defense of Marriage Act” in Federal Court.

I assume Judge Napolitano will be making the same points on air, perhaps — perhaps — countering Fox News personality Monica Crowley’s calling President Obama “Mubarak Obama.”

NOM: “This is it. The whole ball game. If we back down here, it will be all over.”

When others see an important step toward an end to discrimination, National Organization for Marriage’s Brian Brown sees a fundraising opportunity:

Dear Marriage Supporters,

This may be the most important email I’ve ever sent to you. Please read, take action and forward this message to at least 5 friends immediately.  

The Obama administration has just announced that they will no longer defend the Defense of Marriage Act (DOMA) in court. In a statement released this morning, Attorney General Eric Holder explained that President Obama has decided that the definition of marriage contained in DOMA is unconstitutional, and has ordered that the Department of Justice should abdicate its constitutional duty and no longer defend DOMA against constitutional challenges.   

Click Here to read the rest of NOM’s fundraising shill.

Anti-Gay Activists React to DOMA Announcement

Brian Brown from National Organization for Marriage lost his already limited capacity for original thought and channels John Paul Jones:

We have not yet begun to fight for marriage,” said Brian Brown, president of NOM.”The Democrats are responding to their election loss with a series of extraordinary, extra-constitutional end runs around democracy, whether it’s fleeing the state in Wisconsin and Indiana to prevent a vote, or unilaterally declaring homosexuals a protected class under our Constitution, as President Obama just did,” said Brown. “We call on the House to intervene to protect DOMA, and to tell the Obama administration they have to respect the limits on their power. This fight is not over, it has only begun!”

Maggie Gallagher chimes in:

On the one hand this is a truly shocking extra-constitutional power grab in declaring gay people are a protected class, and it’s also a defection of duty on the part of the President Obama,” said Maggie Gallagher, Chairman of NOM, “On the other hand, the Obama administration was throwing this case in court anyway. The good news is this now clears the way for the House to intervene and to get lawyers in the court room who actually want to defend the law, and not please their powerful political special interests.”

Liberty Counsel’s Mat Staver, who charged that allowing same-sex marriages would lead to an epidemic of violent crime, called Obama the most divisive President in US History:

Regardless of President Obama’s own ideological agenda, as President, he and his Attorney General have a duty to defend lawfully passed legislation, especially when the essence of the law has been upheld by many courts. Thirty states have passed marriage amendments affirming marriage as one man and one woman. Today President Obama has abandoned his role as President of the United States and transformed his office into the President of the Divided States. He has been the most divisive president in American history. He has today declared war on the American people and the fundamental values that are shared by most Americans. His radicalism resulted in the historical push-back in the 2010 elections. His radicalism today will come back around when the people respond to this betrayal in 2012,” said Staver.

Focus On the Family’s Tom Minnery wants Congressional Republicans to drop whatever they’re doing and pick up the flag:

“We would hope Congress uses the tools at its disposal to counter this decision and defend marriage,” Minnery said.

What should Congress do? Family Research Council’s Tony Perkins wants Congress to take Holder’s bait by dropping their “only interested in the deficit” mantra and reveal what many suspect to be their true colors:

“With this decision the President has thrown down the gauntlet, challenging Congress. It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the President’s neglect of duty,” concluded Perkins.

American Family Association’s Bryan Fischer, who recently said that he would “fight to the last ditch” for marriage discrimination, has Perkins’s back:

“I think it’s a clear sign that we simply cannot avoid engaging on the social issues,” Bryan Fischer, director of issue analysis for the group, told TPM. “Mitch Daniels has called for a truce on social issues and that would be fine if the homosexual lobby was willing to lay down arms, but they’re obviously not and this proves it. A truce is nothing more than a surrender.”

So far, House Speaker John Boehner is staying on message and has declined to take the bait:

A spokesman for House Speaker John Boehner, R-Ohio, criticized the administration change of position. “While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,” said spokesman Brendan Buck.

Update: Potential GOP Presidential candidate and former Arkansas Governor Mike Huckabee found a clever way to blame gay marriage for increasing the deficit:

Nonetheless, Huckabee opposes gay marriage on the grounds that, according to him, it destroys traditional families.  “There is a quantified impact of broken families,” Huckabee said. “[There is a] $300 billion dad deficit in America every year…that’s the amount of money that we spend as taxpayers to pick up the pieces because dads are derelict in their duties.”

The Meaning of Obama’s DOMA Decision

The obvious question behind today’s announcement that the Obama Administration would not defend the so-called “Defense of Marriage Act” in two cases filed last November is this: What does this mean today?

So far, not much. DOMA is still on the books, and it has not been declared unconstitutional. It does mean however that the Justice Department won’t defend section 3 of the statute which bars federal recognition of marriage of same-sex couples when that portion of the law is challenged in court. And so one possibiliy is that we may have a national patchwork of DOMA enforcement — it is kaput where Federal judges or their Appeals Courts have ruled against it, while it remains on the books where the courts have upheld the law or haven’t ruled. That would make, for example, the IRS’s administering the tax code a logitical nightmare, with some gay couples filing as married couples in some jurisdictions while others are barred from doing so elsewhere. Immigration can become a similar quagmire for transnational couples. Without, ultimately, either an appeal somewhere to the Supreme Court or repeal of DOMA itself, it’s going to be very intresting — and probably frustrating — for a very long time.

(Speaking of repeal, Sen. Dianne Feinstein has announced that she will introduce a bill into the Senate doing exactly that.)

One encouraging possibility to this decision however is that the Administration and Justice Department may have read the tea leaves on the current court and adjusted accordingly:

The announcement today does not overturn the law. That would take an act of Congress or a final finding by the judicial branch, probably the Supreme Court. But it changes the vector of the legal cases considerably. Privately, the administration believes that five justices of the Court, including Anthony Kennedy, the swing vote, would find parts or most of DOMA invalid if the federal government withdrew its arguments in defense of it.

Why the change now and not when the Justice Department was arguing to uphold DOMA before a Federal Judge in Massachusetts earlier last year? The answer hinges on the difference in legal precedent between the two sets of cases filed in different districts of Federal Court:

Citing an executive-branch duty to defend acts of Congress when plausible arguments exist that they are constitutional, the Obama administration had previously argued that legal challenges to the Defense of Marriage Act should be dismissed.

But those lawsuits were filed in circuits that had precedents saying that when gay people say a law infringes on their rights, judges should use a test called “rational basis” to evaluate that claim. Under that standard, the law is presumed to be constitutional, and challengers must prove that there is no conceivable rational government basis for enacting it, a hard standard for challengers to meet.

But the new lawsuits were filed in districts covered by the appeals court in New York. That court has no precedent establishing which legal test judges should use when evaluating claims that a federal law violates gay people’s rights.

That vacuum meant that the administration’s legal team had to perform its own analysis of whether gay people were entitled to the protection of a test known as “heightened scrutiny.” Under that test, it is much easier to challenge laws that unequally affect a group, because the test presumes that such laws are unconstitutional, and they may be upheld only if the lawmakers’ purpose in enacting them served a compelling governmental interest.

There’s one more thing that bears watching. Attorney Gen. Erik Holder dangled some political bait for DOMA’s supporters in Congress by pointing out that “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.” Will Boehner or any other DOMA supporters in Congress rise to the challenge of casting aside their “only interested in the economy” mantra to defend this law?