MA Judge rules DOMA is unconstitutional [MERGED]

[White Eagle]

Re: MA Judge rules DOMA is unconstitutional

Failure to defend was discussed here during the uproar over the Smelt case. There were a few examples that arose then, but I don't remember what they were. You're right though that it is an unusual occurrence.

I think there's a chance it could be upheld. This is a GLAD case after all. They're pretty sharp about legal strategy. It's no more risky than the Perry case. I say that the administration would be doing us a favor by appealing it. It might cost them some gay votes from those less legally astute, but it's really to our advantage if they appeal.

I'm glad you made this post this AM as I'm confused about this. This is the first thing I saw about it this AM:

Obama's Justice Dept. Expected to Defend Against Anti-Gay Defense of Marriage Act

Someone in the comments of an article about this said the "Against" shouldn't be in there. Is this a double negative? You say the admin would be doing us a favor. I'm glad you say this. I'm prepared this AM to notify all Democrats that I would be voting for and tell them to get Obama to do the right thing for us or there would be no votes from me.
The Democrat party has an office just 1 block from my apt. I'm thinking of going there and find out what they think.

 

[bankside]

If Obama's government does not appeal, this decision could stand as the decision of record for now, but another administration could appeal. (If not this decision, then an equivalent one..)

For Obama to let the decision stand leaves open the risk that a future uncivilised administration would defend this wrong federal law more vigorously.

A very smart strategy for equality would be to try to have this decision (or another just like it) wind up in the Supreme Court on appeal at an appropriate future date when its minimally defensible content would fall before the constitution.

It might even be smarter than just pushing to repeal the law: first, that route would leave the constitutionality of such a law unchallenged, meaning it could be enacted again by a future Congress.

And second, it may be convenient for politicians to dodge responsibility and "blame" the courts for "making them" change an unjust law which is still very popular in some backwater sara-palinesque counties - people criticize politicians for not having the fortitude for a fair fight on principle and pushing to repeal - but in reality there is a legitimate role to play for the courts. Seek their opinion on the constitutionality of this kind of law, get some reasoned argument in place, and put that before the people. It does not harm the natural flow of democratic politics for the people to be aware that court after court has held that marriage discrimination is against the very principles of the constitution. It is legitimate to give the court system enough time to get that message out to the people.

So in fact, some of Obama's friends are also saying the Justice Department put up a weak defence. There is very little there for which any defence can be made. I think they're doing the right thing.

 

[Kulindahr]

There are good arguments for both moves. I'm thinking at this point that appealing would be better.

BTW, anyone know how the next court up is likely to treat it?

 

[BostonPirate]

There are good arguments for both moves. I'm thinking at this point that appealing would be better.

BTW, anyone know how the next court up is likely to treat it?

yeah.

I would hope that they bring it, but don't offer much of a fight. get it done now, and lose the thing so it falls.

construct may know where this goes next.

 

[construct]

We don't need our fierce advocates arguing in defense of laws that discriminate against us.

The Justice Department could accept Tauro’s decision as constitutionally sound and appropriate.

And should a fierce advocate for gay rights remain silent in response to this decision? Or respond as Representative Tammy Baldwin has:

I agree with you that the Justice Department could accept Judge Tauro's decision as constitutionally sound and appropriate. (As you know, I completely agree with it myself.)

And I agree completely with Tammy Baldwin. She pointed out the importance and correctness of this decision, but notice she made no criticism whatsoever of the government's defense in this case. She's in the right position to make this statement, and I'm very pleased she did.

However, I would have been very displeased had the President or the Attorney General made the same comment. I will be extremely disappointed should this case not go to the First Circuit, and the only way for that to happen is for the Justice Department to defend DOMA. If Pres. Obama is truly a fierce advocate as he says he is, he will defend DOMA. If he does not defend it, he would not be our fierce advocate.

Do you really think we should just abandon the judicial route to getting rid of DOMA? I don't.

 

[construct]

It would seem to be more advantageous to have this ruling inform those in other jurisdictions so that there is a groundswell for a positive federal outcome.

If Obama's government does not appeal, this decision could stand as the decision of record for now

I notice that these posts come from Canadians. I don't mean to be condescending. It's just that I don't know how your legal system handles trial court decisions.

Here in the U.S., trial court opinions count for nothing as far as other jurisdictions are concerned. They have absolutely no value as precedent. They can't even be cited in other cases. It's not allowed. (A district court is a trial court.) The only way, the only way, that this case has any legal impact whatsoever beyond the jurisdiction of this particular district court is for it to go up to the First Circuit.

I can NOT emphasize this strongly enough.



Edit to add: I notice that I previously said that cases from one jurisdiction are persuasive authority in other jurisdictions. I should have been clearer. That statement is true with respect to opinions of courts of appeal. It is not true with respect to trial court opinions.

 

[rareboy]

Edit to add: I notice that I previously said that cases from one jurisdiction are persuasive authority in other jurisdictions. I should have been clearer. That statement is true with respect to opinions of courts of appeal. It is not true with respect to trial court opinions.

Ah. that makes it clearer.

I also realize that because the justice system is so politicized on the US, this may also have some bearing on the way that decisions are rendered. so much less the case up here in Canuckistan.

 

[bankside]

I notice that these posts come from Canadians. I don't mean to be condescending. It's just that I don't know how your legal system handles trial court decisions.

Here in the U.S., trial court opinions count for nothing as far as other jurisdictions are concerned. They have absolutely no value as precedent. They can't even be cited in other cases. It's not allowed. (A district court is a trial court.) The only way, the only way, that this case has any legal impact whatsoever beyond the jurisdiction of this particular district court is for it to go up to the First Circuit.

I can NOT emphasize this strongly enough.

Edit to add: I notice that I previously said that cases from one jurisdiction are persuasive authority in other jurisdictions. I should have been clearer. That statement is true with respect to opinions of courts of appeal. It is not true with respect to trial court opinions.

This aspect is roughly equivalent. Supreme Court precedent is binding on all. Each province (rather than circuits) has its own appeal-level court (styled as provincial Supreme Court, Superior Court, or Court of Queen's Bench, depending on the province) whose decisions are binding on the trial level courts in their respective provinces, and though "persuasive" only, the decisions are watched closely by peer-level appeal courts in other provinces.

Our constitution also includes reference to "fundamental justice" as a foundational concept. It is rather a broad view at a philosophical level as to what constitutes "justice." It implies that the constitution itself is not the fount of justice but rather a means of accessing a deeper, more universal and abstract conception of what is just. And, therefore, it allows the Canadian judiciary - certainly at the appeal and Supreme Court level - to read and cite cases they find convincing not just from peer courts within Canada, but those of other courts within the Commonwealth, and indeed the world.

Basically Canadian Law and Constitutional interpretation will prevail where relevant, and in any cases requiring a decision on questions beyond settled law, the judges can examine any cogent legal argument regardless of origin.

In my training I know the constitutional side far better than the legal side - I do not know, but I suspect this practise is not common at trial level - I don't know if there is an actual rule precluding it or whether the trial judges find themselves busy enough with Canadian precedent to go reading each other's decisions or those of foreign jurisdictions.

Btw, sorry if I was a little too scant in my thoughts to be clearly understood. This was the point I was trying to get across:

If Obama's government does not appeal, this decision could stand as the decision of record for now for this jurisdiction only, but another administration could appeal this particular decision, with the intent to win the appeal and uphold DOMA as constitutional. (If not this decision, then an equivalent one in some jurisdiction other than Massachusetts given that appealing this particular decision might be precluded by the lapse of time between now and the election of some hypothetical future administration that hates gay equality. ..)

Is there a limit on filing an appeal? I would assume so.

 

[Kulindahr]

I will be extremely disappointed should this case not go to the First Circuit, and the only way for that to happen is for the Justice Department to defend DOMA. If Pres. Obama is truly a fierce advocate as he says he is, he will defend DOMA. If he does not defend it, he would not be our fierce advocate.

Do you really think we should just abandon the judicial route to getting rid of DOMA? I don't.

This is another one of those weird contrary-to-logic situations, where to achieve one thing one has to attempt the opposite. The other I'm thinking of is the court bit about a group not having significant political power -- so if we want that in our favor in the courts, we don't want to win at the ballot box..... so in order to win, we have to lose.

 

[construct]

Our constitution also includes reference to "fundamental justice" as a foundational concept. It is rather a broad view at a philosophical level as to what constitutes "justice." It implies that the constitution itself is not the fount of justice but rather a means of accessing a deeper, more universal and abstract conception of what is just. And, therefore, it allows the Canadian judiciary - certainly at the appeal and Supreme Court level - to read and cite cases they find convincing not just from peer courts within Canada, but those of other courts within the Commonwealth, and indeed the world.

Basically Canadian Law and Constitutional interpretation will prevail where relevant, and in any cases requiring a decision on questions beyond settled law, the judges can examine any cogent legal argument regardless of origin.

In my training I know the constitutional side far better than the legal side - I do not know, but I suspect this practise is not common at trial level - I don't know if there is an actual rule precluding it or whether the trial judges find themselves busy enough with Canadian precedent to go reading each other's decisions or those of foreign jurisdictions.



Is there a limit on filing an appeal? I would assume so.

Thanks. When we talk about fundamental liberties, it's similar to fundamental justice as you explained it. We just deal with one liberty at a time to see whether it's fundamental. That concept is not explicit in the U.S. Constitution, but it is very important in case law.

As to the question about time limits for appeals, the short answer is yes, there are time limits. The longer you wait, the more you have to show to get the appeal, and there is a drop-dead deadline, too.

 

[NickCole]

I agree with you that the Justice Department could accept Judge Tauro's decision as constitutionally sound and appropriate. (As you know, I completely agree with it myself.)

And I agree completely with Tammy Baldwin. She pointed out the importance and correctness of this decision, but notice she made no criticism whatsoever of the government's defense in this case. She's in the right position to make this statement, and I'm very pleased she did.

However, I would have been very displeased had the President or the Attorney General made the same comment.

Don't know why you lumped in the Attorney General; my comment had nothing to do with him.

I was talking about the President, the attorney and Constitutional professor, the man who told us he's our fierce advocate and would use the bully pulpit on our behalf, and who called DOMA "abhorrent" and "an unnecessary imposition on what had been the traditional rules governing marriage and how states interact on the issues of marriage," and "Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does."

I will be extremely disappointed should this case not go to the First Circuit, and the only way for that to happen is for the Justice Department to defend DOMA. If Pres. Obama is truly a fierce advocate as he says he is, he will defend DOMA. If he does not defend it, he would not be our fierce advocate.

When I sniff hypocrisy I turn things around and see how it smells.

And I don't for a minute believe you or any Democrat who supports gay rights would have said this if Bush were President, that if he defends DOMA he's showing he's our fierce advocate.

Do you really think we should just abandon the judicial route to getting rid of DOMA? I don't.

Of course not.

I think our fierce advocates, however, should be arguing against DOMA, not defending it and handing more ammunition to our opponents.

 

[construct]

Don't know why you lumped in the Attorney General; my comment had nothing to do with him.

Well, there was significant criticism for Eric Holder arising out of the infamous Smelt brief. If he was up for criticism then, he's up for criticism now.

I was talking about the President, the attorney and Constitutional professor, the man who told us he's our fierce advocate and would use the bully pulpit on our behalf, and who called DOMA "abhorrent" and "an unnecessary imposition on what had been the traditional rules governing marriage and how states interact on the issues of marriage," and "Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does."

Then we already know his stance on the issue of DOMA. Now by appealing this decision, he would be putting that into action.

When I sniff hypocrisy I turn things around and see how it smells.

And I don't for a minute believe you or any Democrat who supports gay rights would have said this if Bush were President, that if he defends DOMA he's showing he's our fierce advocate.

Of course not.

You're right. I would interpret this administration's appeal in an opposite way from a similar appeal by Bush because the motivations would be different. Obama personally opposes DOMA but chooses to defend it in order to accomplish both his own and our advancement. I'm reasonably sure of his motive because he said he opposes DOMA, and he is a lawyer. He understands how legal procedure works.

The Bush administration, on the other hand, would be defending the case because they believe that DOMA is good and ought to stay on the books. He had said as much on numerous occasions. So I would be reasonably sure that his motives would be completely transparent.

I think our fierce advocates, however, should be arguing against DOMA, not defending it and handing more ammunition to our opponents.

Our fierce advocates in the administration can't argue against DOMA. If they did, there would be no case for the court to decide.

Our opponents already have all the ammunition they're likely to see in a DoJ brief. They've been writing amicus briefs on cases like this for years. The DoJ briefs are not going to give them anything new.

Now let me tell you the story of Morales v. Morales from the mid-1990s. One of those Moraleses was Dan Morales, Atty. Gen. of Texas. He was a Democrat who opposed the Homosexual Conduct law. The case sought to overturn that law and was being tried in the state court system. Dan Morales was defending the law. We had won at the Court of Appeals. At that time, Morales came to gay leaders in the state and asked what he was supposed to do. He opposed the law and agreed in substance with the court's opinion.

He went to the gay leaders in Texas and asked what they wanted him to do. The gay leaders told him essentially the same thing I'm saying here. They were not at all sure that they would win, but it was their best shot to have 21.06 struck down. We lost on the question of jurisdiction, but at least we tried.

Lawrence was our next opportunity to pursue the matter. At that point we decided to file it in federal court. Both the Texas Supreme Court and the Texas Court of Criminal Appeals had dismissed our constitutional appeals for lack of jurisdiction. So the federal court system was what we were left with. We lost in district and circuit courts before winning at the Supreme Court. But we could not have gotten to the Supreme Court had the administration failed to defend the law. The administration defended it because they believed in it.

These Massachusetts cases are like Morales and unlike Lawrence because of the stated attitudes of the parties defending the law.

It is counter-intuitive, ironic, whatever. I know that. But it's true. Failure to defend would hurt our progress. If the administration appeals, Obama will pick up points with me because of my experience. He will lose points with you because of your straightforward expectations.

I hope my argument is persuasive, but I'm not going to be too disappointed if I fail to persuade one or another person here or there. I know that the (simpler) judgment that they cling to is more direct than mine. I know that they want the same outcome that I do, but for whatever reason, they seem to be willing to stop short of victory. I'm not.

 

[NickCole]

You're right. I would interpret this administration's appeal in an opposite way from a similar appeal by Bush because the motivations would be different. Obama personally opposes DOMA but chooses to defend it in order to accomplish both his own and our advancement. I'm reasonably sure of his motive because he said he opposes DOMA, and he is a lawyer. He understands how legal procedure works.

You base this entirely on Obama saying he opposes DOMA.

Obama expressed his support for DOMA to a group called the Independent Voters of Illinois during his 2004 campaign for the Senate, then after that was reported he abruptly changed his position on February 11, 2004 as the Illinois Democratic primary approached. [Source link below.]

It's become clear in many instances that what Obama says and what he does are often two completely different things; therefore determining what he really believes or his real motives through what he says, alone, is unwise to say the least. The best marker a reasonable thinking person can use is Obama's actions. And in the six years since switching what he says he believes about DOMA in 2004, as U.S. Senator and as President with Dem majority Congress, Obama has done nothing to advance the repeal of DOMA, and in fact as President his DOJ submitted a strong --and frankly offensive-- defense of DOMA.

In his switcheroo from supporting DOMA to opposing it, in 2004, Obama wrote to the Windy City Times,

"Despite my own feelings about an abhorrent law, the realities of modern politics persist. While the repeal of DOMA is essential, the unfortunate truth is that it is unlikely with Mr. Bush in the White House and Republicans in control of both chambers of Congress. ..." http://www.windycitymediagroup.com/gay/lesbian/news/ARTICLE.php?AID=4018

and yet with Obama in the White House and Democrats in control of both chambers of Congresss ...

Clinging to the notion that Obama really does oppose DOMA and that he's going to do anything to help us repeal it flies in the face of any reasonable reading of Obama's actions as Senator or as President with an overwhelming majority in both Houses of Congress.



http://abcnews.go.com/Politics/pres...d-justice-department/story?id=11126465&page=2

 

[hotatlboi]

I think our fierce advocates, however, should be arguing against DOMA

So basically, you think the federal government should sue itself?

 

[bankside]

So basically, you think the federal government should sue itself?

Actually the Government of Canada can sue itself, in essence. It's called a "Supreme Court Reference" and they just skip all the trials and appeals and send a question directly to the Supreme Court. They'll appear before the court, and the court can appoint Amicus Curiae to file, and "interested parties" can apply to get in on the action, and then they issue a ruling just as in an ordinary case, binding and unappealable.

Do y'all have something like that down there?

 

[Kulindahr]

Nick, in Construct's scenario it doesn't really matter what Obama actually believes; what's important is that Obama have the case appealed. Ideally, the DoJ would appeal and then in court make no real argument, so DOMA would slapped down, but that would require an Obama who could be counted on.

Personally I think the DoJ will appeal because Obama is good at following the forms if not any substance. Then I think DOMA will get slammed again, and the DoJ will appeal again....

 

[construct]

Actually the Government of Canada can sue itself, in essence. It's called a "Supreme Court Reference" and they just skip all the trials and appeals and send a question directly to the Supreme Court. They'll appear before the court, and the court can appoint Amicus Curiae to file, and "interested parties" can apply to get in on the action, and then they issue a ruling just as in an ordinary case, binding and unappealable.

Do y'all have something like that down there?

No. Federal courts are forbidden from giving advisory opinions. Article III of the U.S. Constitution requires that there be a case or controversy for the court to deliver an opinion on.

 

[construct]

You base this entirely on Obama saying he opposes DOMA.

Obama expressed his support for DOMA to a group called the Independent Voters of Illinois during his 2004 campaign for the Senate, then after that was reported he abruptly changed his position on February 11, 2004 as the Illinois Democratic primary approached. [Source link below.]

It's become clear in many instances that what Obama says and what he does are often two completely different things; therefore determining what he really believes or his real motives through what he says, alone, is unwise to say the least. The best marker a reasonable thinking person can use is Obama's actions. And in the six years since switching what he says he believes about DOMA in 2004, as U.S. Senator and as President with Dem majority Congress, Obama has done nothing to advance the repeal of DOMA, and in fact as President his DOJ submitted a strong --and frankly offensive-- defense of DOMA.

In his switcheroo from supporting DOMA to opposing it, in 2004, Obama wrote to the Windy City Times,

and yet with Obama in the White House and Democrats in control of both chambers of Congresss ...

Clinging to the notion that Obama really does oppose DOMA and that he's going to do anything to help us repeal it flies in the face of any reasonable reading of Obama's actions as Senator or as President with an overwhelming majority in both Houses of Congress.



http://abcnews.go.com/Politics/pres...d-justice-department/story?id=11126465&page=2

Fine. Have it your way. Obama hates gays. Or maybe he just doesn't give a damn about us. It doesn't matter. I want these cases appealed. I don't give a damn why it happens. I just want it to happen.

And as for that Smelt brief, I just hope I'm good enough to have written the same one. I especially liked its citations to the underage, common-law, and incestuous marriage cases. Those were exactly the right cases to cite. I knew about them at the time, and I would have made sure they were there had I been writing the brief myself. If you're offended by the Smelt brief, you would be offended by mine, too.

Now, let's let this one drop since we recognize that we are not likely to come to agreement on it.

 

[NickCole]

Nick, in Construct's scenario it doesn't really matter what Obama actually believes; ...

It matters because construct conceded that if Bush did the same thing, construct would not be saying, as he did of Obama, that it shows the President is truly our fierce advocate.

It's not like this is an isolated event. Again and again Obama has taken the same position Bush would have taken and Obama supporters go along with it because he supposedly wants the right thing, though they would not have applauded Bush for it. It all hinges on what Obama actually believes and the truth of his motives.

That alone should give one pause because the same action by two men is likely to have the same result, and there are conseqences. It's one thing when gays know who our enemies are and fight them; it's another entirely when gay rights enthusiasts actually support actions that are detrimental to gay rights advancement because they're hoodwinked by someone who claims to be our fierce advocate but in truth takes the same action/nonaction as someone who opposes us -- that has profound consequences. This is true in all of life: the person who gains your trust and your protection, but doesn't really have your back as you believe, can do damage to you that the guy you knew was your adversary can never do. So it's smart, first and foremost, to know how to figure out who really is our fierce advocate and who is just pretending to be.

We may be about to lose our majority in the House, even the WH is now saying so, which is a staggering circumstance considering the number of seats we have and the number of opportunities Dems have had in the past year and a half to prove ourselves worthy of governing and legislating. With Republican control of the House there is no way in hell DOMA or DADT repeal will get through, nor ENDA become law. These things should have been attended to immediately in early 2009 as I said back then. The fact that they were not is revealing in itself. When citizens who're being discriminated against make excuses for public officials in this way, the discrimination may actually deepen rather than lift.

Construct is right that Obama's motive and Bush's motive, or any leader's motive, is a pivotal part of the equation. It defines intent and intent informs the substance of what we do. But construct is wrong, as I've shown, about Obama's motive. No matter who we SAY we are and what we SAY we believe, the truth of who we are and what we believe is revealed in our actions.

 

[NickCole]

Now, let's let this one drop since we recognize that we are not likely to come to agreement on it.

Okay, if you like. I'll leave your post as the last word on the subject between us.

But, for the record, coming to agreement is by no means the only reason I engage in discussion. I'm not very interested in trying to change anybody's opinion, and like most people I don't engage in discussion with the hope that I'll change mine, I'm much more interested in learning and informing for greater understanding.

Discussion of this nature provides the opportunity to learn all kinds of things. For instance, I've learned something about you that I hadn't recognized before; and maybe you have, about me, as well.

Thanks for engaging.