Saturday, March 5, 2011


"Attorney General Eric Holder appeared on Capitol Hill to testify about the Department of Justice's budget request Tuesday and wound up fielding a number of pointed questions on a range of topics. Chief among them was the Department's announcement that it will not defend the Defense of Marriage Act (DOMA) in current court proceedings.""
Fox News

The question is, can the DOJ, acting under the orders of the President, refuse to enforce federal law? More specifically, can the president order this?

What is the Defense of Marriage Act?

"The Defense of Marriage Act (Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is a United States federal law signed into law by President Bill Clinton on September 21, 1996 whereby the federal government defines marriage as a legal union between one man and one woman. Under the law, also known as DOMA, no state (or other political subdivision within the United States) may be required to recognize as a marriage a same-sex relationship considered a marriage in another state. The law passed both houses of Congress by large majorities."

This passage of the bill followed the guidelines established in the Constitution:

"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;[2] If he approve he shall sign it..."
Article 1 Section 7 U.S. Constitution

And President Obama swore an oath to uphold and defend the Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Last year a federal judge declared DOMA unconstitutional:

"In a major victory for marriage equality advocates, a federal judge in Boston ruled Thursday in two separate cases that a critical portion of the federal Defense of Marriage Act is unconstitutional.

In one challenge brought by the state of Massachusetts, U.S. district judge Joseph Tauro ruled that Congress violated the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married."

A stay was issued on part of the decision:

"A Massachusetts federal court decision striking down as unconstitutional a section of the federal Defense of Marriage Act will go on hold pending any appeal by the government.

The U.S. Department of Justice and parties represented by Gay & Lesbian Advocates & Defenders on Wednesday agreed to a stay of the decision issued by U.S. District Judge Joseph Tauro last month in Gill v. Office of Personnel Management."

This means that all parties involved in the decision agreed to leave the law as it was written pending final adjudication. So DOMA is still, for all intents and purposes, federal law. Yet the DOJ is refusing to enforce it under the orders of the President. This seems to me to be illegal, and if it is, it seems someone should be going to jail or at the very least be brought up on charges of some sort.

And so we have this:

"Rep. Trent Franks, R-AZ, said in an interview that he would support impeaching President Obama and Attorney General Eric Holder if the White House does not reverse its decision not to defend the Defense of Marriage Act.

Franks also said he would "absolutely" support defunding the Department of Justice if the administration did not begin defending the 1998 law, when asked by ThinkProgress's Scott Keyes.

Asked whether he would support impeaching Obama and Holder if the administration doesn't reverse course as former speaker Newt Gingrich has suggested, Franks responded, "if it could gain the collective support, absolutely.""
The Atlantic

Dare I point out the hypocrisy of the Obama administration regarding the health care bill and it's very similar legal journey?

"A U.S. district judge on Monday threw out the nation's health care law, declaring it unconstitutional because it violates the Commerce Clause and surely reviving a feud among competing philosophies about the role of government.

Judge Roger Vinson, in Pensacola, Fla., ruled that as a result of the unconstitutionality of the "individual mandate" that requires people to buy insurance, the entire law must be declared void."
Fox News

A stay was issued in this case just this week by the presiding judge:

"Florida District Court Judge Roger Vinson has ordered a stay on his own ruling voiding the Affordable Care Act because of Constitutional issues. This will allow states and the federal government to continue to implement the health care law while the case is under appeal.

Vinson actually framed the order as a “clarification” to his order from last month. Some states were using the ruling to stop implementation of the law. Vinson cleared this up by staying the ruling, provided that the Justice Department appeal to a higher court within one week..."

The thing is, even though a stay was issued months ago in the DOMA case, meaning that it remains in force, the fed has refused to enforce the law. In the case of the health care bill a conditional stay was just issued two days ago, meaning that for all intents and purposes, up until that time, the health care bill was, at least arguably, no longer law. Yet the administration continued and continues to act as though it were.

We are supposed to be a country based upon the rule of law yet it seems that our commander in chief and his administration consider themselves above that very same law. If the law is not binding on the government then how can it be binding on the people? Have we ceased to be a Constitutional Republic? If so, what have we become?

I think that this does raise constitutional questions that must be addressed and for this reason I believe that impeachment is the proper course of action. The power of the federal government and more specifically the executive branch of that government must be reeled in and brought back under the law established in the Constitution.

And if it can't be, what then? I don't know. But at the very least we'll stop lying to ourselves and everyone else about the nature of our government. The first step to fixing a problem is to admit that you have one.

Below I've reprinted Archbishop Timothy Dolan's remarks concerning the DOMA. They're well worth the read.

"The announcement on February 23 that the President has instructed the Department of Justice to stop defending the Defense of Marriage Act (DOMA) is an alarming and grave injustice. Marriage, the union of one man and one woman as husband and wife, is a singular and irreplaceable institution. Only a man and a woman are capable of the “two-in-one-flesh” union of husband and wife. Only a man and a woman have the ability to bring children into the world. Along with that ability comes responsibility, which society historically reinforces with laws that bind mothers and fathers to each other and their children. This family unit represents the most basic and vital cell of any society, protecting the right of children to know and be known by, to love and be loved by, their mother and father. Thus, marriage represents the bedrock of the common good of society, its very foundation and future.

Contrary to the Attorney General’s statement, DOMA does not single out people based on sexual “orientation” or inclination. Every person deserves to be treated with justice, compassion, and respect, a proposition of natural law and American law that we as Catholics vigorously promote. Unjust discrimination against any person is always wrong. But DOMA is not “unjust discrimination”; rather, it merely affirms and protects the time-tested and unalterable meaning of marriage. The suggestion that this definition amounts to “discrimination” is grossly false and represents an affront to millions of citizens in this country.

The decision also does not stand the test of common sense. It is hardly “discrimination” to say that a husband and a wife have a unique and singular relationship that two persons of the same sex—or any unmarried persons—simply do not and cannot have. Nor is it “discrimination” to believe that the union of husband and wife has a distinctive and exclusive significance worthy of promotion and protection by the state. It is not “discrimination” to say that having both a mother and a father matters to and benefits a child. Nor is it “discrimination” to say that the state has more than zero interest in ensuring that children will be intimately connected with and raised by their mother and father.

Protecting the definition of marriage is not merely permissible, but actually necessary as a matter of justice. Having laws that affirm the vital importance of mothers and fathers—laws that reinforce, rather than undermine, the ideal that children should be raised by their own mother and father—is essential for any just society. Those laws serve not only the good of the spouses and their children, but the common good. Those laws are now under relentless attack. If we forget the meaning of marriage, we forget what it means to be a human person, what it means to be a man or a woman. Have we wandered away so far in our society as to forget why men and women matter, and eroded the most central institution for our children and for our future?

The Administration’s current position is not only a grave threat to marriage, but to religious liberty and the integrity of our democracy as well. Our nation and government have the duty to recognize and protect marriage, not tamper with and redefine it, nor to caricature the deeply held beliefs of so many citizens as “discrimination.” On behalf of the United States Conference of Catholic Bishops, I express my deep disappointment over the Administration’s recent decision. I have written of these concerns to the President in separate correspondence, and I pray that he and the Department of Justice may yet make the right choice to carry out their constitutional responsibility, defending the irreplaceable institution of marriage, and in so doing protect the future generations of our children."

No comments:

Post a Comment